CIS/366/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Birmingham appeal tribunal dated 18 October 2006 and I refer the case to a differently constituted appeal tribunal for determination.  

2.	I direct the claimant to send to the clerk to the tribunal, within one month of this decision being sent to her, a written statement from her husband, stating what nationality he held in August 2005 and stating also whether he was looking for work in August 2005 and, if so, what type of work he was seeking and what efforts he was making to find work.  He should also explain why he had given up his claim to jobseeker’s allowance.

3.	When a copy of that statement is sent to the Secretary of State, he should consider whether the decision under appeal should be revised and, if is not revised, I direct the Secretary of State to make a written submission to the tribunal, within one month of being sent the statement, giving reasons for not revising the decision and for continuing to resist the appeal.

REASONS

4.	I held an oral hearing of this case at the same time as the oral hearing of CIS/3216/2006 and CIS/4345/2006. The Secretary of State was represented by Ms Marie Demetriou of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions.  The claimant was represented by Mr Martin Williams of the London Advice Services Alliance.  

5.	The claimant is a Dutch national.  She came to the United Kingdom on 29 April 2004 to join her husband and their five children.  She claimed income support on 5 August 2005 on the ground of incapacity for work but the claim was disallowed on 23 August 2005 on the ground that she had no right of residence in the United Kingdom and therefore could not be treated as habitually resident in the United Kingdom (see regulation 21(3G) of the Income Support (General Regulations 1987 (S.I. 1987/1968 as then in force).  The Secretary of State considered that the claimant did not have a right of residence because she was not a qualified person with a right of residence under regulation 14 of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326). The claimant appealed and, in her letter of appeal, she asserted that her husband had worked in the United Kingdom for about two years but had lost his job and become unemployed and in receipt of jobseeker’s allowance shortly after her arrival in the United Kingdom.  She further asserted that he was still looking for work and had abandoned his claim for jobseeker’s allowance only so she could claim income support.  After the Secretary of State’s submission was received the claimant’s representative drew attention to the fact that the submission did not address the question whether the claimant had a right of residence by virtue of being a member of a family of a worker.  The tribunal asked the Secretary of State to provide a supplementary submission in which it was argued that the claimant’s husband could not be a worker because he was unemployed.

6.	On 12 September 2006, the case was listed for hearing before the Birmingham appeal tribunal on 18 October 2006.  On 17 October 2006, the claimant’s representative faxed to the clerk to the tribunal a copy of a letter dated 8 September 2006 that the claimant had been sent by solicitors apparently acting for her 16 year-old daughter in connection with a road traffic accident in which the daughter had been involved two year earlier.  The letter made it plain that the claimant had to attend a hearing at Birmingham county court on 18 October 2006 with her daughter and the claimant’s representative accordingly asked for a postponement, explaining that the letter from the solicitors had been delivered to his office only on the day before it was faxed to the tribunal.  The following day, he appeared on the claimant’s behalf before the tribunal but the claimant herself did not appear.  The tribunal declined to adjourn the hearing and dismissed the claimant’s appeal.

7.	The statement of reasons recorded –

“The tribunal did not consider it appropriate to adjourn as there was no dispute on the facts and the representative had only advised the tribunal the day before that there was any problem with the dates.”

The tribunal rejected various arguments challenging the validity of the legislation that have not been advanced before me (although Mr Williams reserved his position should this case go further) and then dealt with the issue whether the claimant’s husband was a worker.  The statement of reasons continued –

“In the circumstances of the present appeal it would be perverse of the tribunal to reach a conclusion that the appellant is a worker.  In order to reach a decision that the appellant’s husband was or is a worker then the onus is on the appellant to establish this and she is represented by an experienced representative body.  The fact that a person has worked does not mean that in all time coming they should be treated as a worker and there is no indication why it was [the claimant] who then made the claim and not her husband.  We adopt the argument set out in the submission that the appellant’s husband lost his status as a worker as he was unemployed at the relevant period.  There is no evidence that the appellant’s husband was even a work seeker at the date of her claim as she stated she was ill and he may have been caring for her and her children.  Accordingly the appeal must fail.”

The claimant now appeals against the tribunal’s decision with my leave.

8.	Regulation 5(2)(b) of the 2000 Regulations provided –

“A worker does not cease to be a qualified person solely because –
    (a)	; or
    (b)	he is involuntarily unemployed, if that fact is duly recorded by the relevant employment office.”

It is also quite clear from Regina v Secretary of State for the Home Department, ex parte Antonissen (Case C-292/89) [1991] E.C.R. I-745 that a person may have a right of residence as a workseeker even if he or she has never been a worker or has ceased to be one before seeking new employment.

9.	This case was originally listed for hearing with the other two cases because the Secretary of State’s written submission suggested that there would be an issue as to the effect of the requirement in regulation 5(2) of the 2000 Regulations that involuntary unemployment be “duly recorded by the relevant employment office” but, at the hearing, Ms Demetriou did not take any point under regulation 5(2) against the claimants.  I consider she was right not to do so.  Because domestic law does not require the spouse of a claimant to be involuntarily unemployed, the Secretary of State has not set up any system for recording that such people are involuntarily unemployed.  I suspect the need to do so when it became important whether or not a person had a right of residence was overlooked because it was not envisaged that the spouse of a workseeker might claim income support rather than the spouse claiming jobseeker’s allowance.  Since 30 April 2006, the problem has been resolved by the insertion of regulation 21AA(3)(b)(ii) into the 1987 Regulations, which makes a person who has a right of residence only as the spouse of a workseeker ineligible for income support.

10.	In any event, Ms Demetriou accepted that the question whether the claimant had a right of residence in the United Kingdom turned on whether her husband was seeking work in the United Kingdom.  She did not resist the suggestion that either the tribunal had failed to appreciate the importance of that issue or else its reasons for refusing to adjourn were misconceived.  It could hardly be said that there was “no dispute on the facts” if the tribunal was not prepared to accept an assertion in the letter of appeal merely because there was no other evidence to support it.  The Secretary of State may not have challenged the claimant’s assertion but he thought it irrelevant and it was the tribunal itself who made the issue into one that was disputed.  Nor was it appropriate to rely upon a burden of proof merely because the claimant’s representative was experienced.  He had plainly been taken by surprise by the delivery to him two days before the hearing of the letter from the solicitors and it is difficult to see what he could have done that he did not do, given that tribunal representatives are not usually expected to take detailed proofs of evidence on matters that have not been put in issue by the Secretary of State, particularly when they expect the claimant to appear and give oral evidence.  There may have been fault on the part of the claimant in not telling her representative earlier of her need to attend the county court on the day fixed for the tribunal hearing but it was in any event inappropriate to rely on a burden of proof when the only reason why the case could not be concluded in the claimant’s favour in her absence was that the she had not provided details of her husband’s workseeking that she had not been asked to give and which the Secretary of State’s submission to the tribunal had suggested would be irrelevant.  The tribunal was, in effect, raising a new issue and it was for that reason that an adjournment was required when the claimant did not attend the hearing.

11.	Mr Williams raised a broader argument as to whether the claimant had a right of residence as a carer of her children who had entered education in the United Kingdom (see Baumbast v. Secretary of State for the Home Department (Case C-413/99) [2002] E.C.R. I-7091).  That argument is one I have rejected in CIS/3444/2006 and CIS/1121/2007 without an oral hearing but which is to be considered in other cases that have been listed together for an oral hearing before another Commissioner and also, in a different context, in a case that has been referred by the Court of Appeal to the European Court of Justice.  If decided in the claimant’s favour, it would be determinative of this appeal but the hearing before the Commissioner has been postponed on several occasions and I do not consider that the determination of this case should be deferred any longer.  As I can allow this appeal on other grounds, I need not consider the issue further.  Instead, I leave it as an issue for the tribunal to consider if the claimant fails to show that she had a right of residence as the spouse of a worker or workseeker.  By then, there may be further guidance from a Commissioner.  

12.	I refer the case to another tribunal to determine whether the claimant’s husband was a worker or workseeker.  There is, of course, a prior question as to whether he was a citizen of a state within the European Economic Area but the last tribunal was told by the claimant’s representative that the claimant’s husband had been awarded jobseeker’s allowance from 12 September 2006, which suggests that, by that date, he was such a citizen and was also looking for work.  The principal issue for the tribunal is whether that was so from the date of the claimant’s claim

	(signed on the original)	MARK ROWLAND
		Commissioner
		22 August 2008