PLH                                                                          Commissioner's File:  CIS 3789/06

	SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  	Income Support
Appeal Tribunal: 	Darlington
Tribunal Case Ref:  	U/44/224/2006/00050
Tribunal date:	25 July 2006
Reasons issued:	22 August 2006

     1.     	This appeal by the Secretary of State must succeed, as in my judgment the decision of the Darlington appeal tribunal on 25 July 2006 (Mr D Kenningham, chairman, sitting alone) was based on an error in law in holding that the claimant counted as a “worker” having a right to reside in the United Kingdom for the purposes of the claim to income support she made on 10 October 2005.  I set the tribunal’s decision aside and in exercise of the power in section 14(8)(a) Social Security Act 1998 substitute the decision I am satisfied the tribunal ought to have given on the facts and evidence before it, namely to to confirm the Secretary of State’s decision of 5 December 2005 refusing that claim on the ground that she was at the date of both the claim and the decision a “person from abroad” with an applicable amount for income support purposes of nil.  
     2.     	The claimant is a young woman now aged 29, who has German nationality.  Her appeal to the tribunal was against the Secretary of State’s decision already noted, refusing her income support claim from 10 October 2005 on the ground that she could not be treated as habitually resident in the United Kingdom because she did not have a right to reside here for the purposes of regulation 21 Income Support (General) Regulations SI 1987 No. 1967 as in force at the material time, with the consequence that her entitlement under Schedule 7 of the same regulations was nil.
     3.     	The facts appear from the findings of the tribunal and the documentary evidence, and do not appear to be in dispute.  The claimant came to the United Kingdom in 1995 when she was aged 16 and, apart from the one period of absence which preceded the making of her income support claim in October 2005, has lived here ever since.  She initially came to stay with her sister who was already living here and married to a military policeman, but then found her own accommodation, trained as a hairdresser and worked here from 1998 to 2001 when her elder son was born.  She was then off work looking after him until the year 2004 when she again commenced work as a hairdresser from May 2004 to May 2005. She had had I think other short periods of casual employment, but those were the main ones.  She left her employment voluntarily in May 2005 and went back to stay with her father in Bavaria as the relationship with her ex-partner had broken down and she was unwell.  The visit to her father lasted some 4½ months from 22 May to 8 October 2005, when she returned to the United Kingdom and immediately claimed income support as a single parent.  In her claim she said she was not able to work at present as she had a young child to look after and by now another baby on the way, but her intention was to stay in the UK permanently and to resume work when she was able.  
     4.     	The tribunal found, and I see no reason to doubt the correctness of this, that the claimant had long established her habitual residence in the United Kingdom by the time she left to visit her father in May 2005; and the comparatively short time she spent living in Bavaria for specific personal and family reasons in the summer and autumn of that year did not cause her to lose her habitual residence status in this country.  The question was therefore whether at the time of her income support claim she had nevertheless to be excluded from benefit by virtue of the special provision in regulation 21(3G) of the Income Support regulations already cited, requiring her to be treated as a “person from abroad” if she did not then have a right to reside in the United Kingdom. On her behalf it was argued at the tribunal that she did have such a right as a “worker” for the purposes of the relevant European law provisions on freedom of movement and residence within the Community, and this was the only issue the tribunal addressed.  
     5.     	The chairman accepted the well-prepared written and oral submissions put before him by the claimant’s representative (no departmental representative attending to put the contrary point of view) and held that as he said in his statement of reasons at page 95A:
“As to the right of residence, I find that the Appellant is a qualified person because she is a worker within the meaning of Article 39 of the EC Treaty and so I find that the Appellant is not a person from abroad whose income support applicable amount is nil.”
Consequently he allowed the appeal and held the claimant entitled to the benefit.  
     6.     	The Secretary of State appealed on the ground that the tribunal had failed correctly to apply the law on the “right to reside” and habitual residence that had been in force since 1 May 2004, and that as the claimant had left the United Kingdom for five months and claimed income support on her return, having left her previous employment voluntarily and being at the relevant time not in any way engaged in the labour market but economically inactive, she could not properly have been held still a “worker” at that time.  
     7.     	Consideration of this case, along with others, had been deferred to await the outcome of other proceedings referred to below in which it was being argued that the “right to reside” for this purpose should be given a broader meaning in favour of European Union citizens legitimately present in this country though not necessarily as workers or workseekers.  Following the conclusion of those proceedings and the further directions of the Legal Officer it has now been referred to me for decision.
     8.     	In my judgment the Secretary of State’s appeal has to succeed on the question of whether the claimant could properly have been counted as a “worker” following her return to the United Kingdom in October 2005.  It may seem harsh, but the status of a “worker” is accorded only to those actually engaged in economic activity in the labour market or as self-employed persons at the material time.  Accepting that this description can extend to those temporarily unable to be at their work because of illness or accident, or an involuntary spell of unemployment, it is still not apt to include a person who has withdraw from employment voluntarily and has been and remains economically inactive, neither in work nor seeking it: albeit for entirely proper and understandable practical reasons such as having had to take a break from the world of work because of the breakdown of a relationship and the continuing family responsibilities of having a young child under school age to look after and another one on the way.   
     9.     	The Secretary of State’s submissions in support of the appeal are in my view correct in saying that on the material before the tribunal there was simply no evidence to support the conclusion that the claimant was currently a worker, either at the time of her income support claim on 10 October 2005 or that of the Secretary of State’s decision refusing it on 5 December 2005; the tribunal’s consideration being restricted by section 12(8)(b) Social Security Act 1998 to her circumstances down to the latter date.  
     10.     	That was so in my view despite the fact that this claimant had admittedly lived and worked in this country for extended periods before the crisis in her life that had caused her to cease being employed here and to return to Germany for an extended break in May 2005.  What matters for this purpose is her employment status as at the time of her re-entry to this country in October and down to the decision of 5 December; and I am not able to accept the submission on the claimant’s behalf that her position at that time was distinguishable from that of the claimants in R(IS) 8/07 Abdirahman and Ullusow v Secretary of State [2007] EWCA Civ 657, referred to in the Legal Officer’s direction of 1 April 2008.  Like them, at the relevant time she did not work and was not seeking work in the United Kingdom.  That case is of course binding on me and is authority that a person in that position, lawfully present here though not as a worker, has no general “right to reside” for this purpose by virtue of Article 18 of the EC Treaty in the absence of some specific provision in a Directive, Regulation or other EU measure conferring it. 
     11.     	Nor on the evidence before the tribunal does it appear the claimant had any such right at the relevant time for this appeal.  In particular, I am unable to accept the further suggestion of the claimant’s representative in her submission of 14 April 2008 at page 130 that she is able to rely on the right of permanent residence conferred by Article 16 of Directive 2004/38/EC on Union citizens who have resided legally for a continuous period of five years in a host member State.  Even assuming that residence of the required continuity and nature could be established on the facts of the claimant’s case, the new right of permanent residence under Article 16 did not become a right exercisable by European Union citizens until the Directive itself entered into force, which only took place on 30 April 2006.  That was some five months after the period the tribunal was permitted to take into account on the appeal before it on 25 July 2006: section 12(8)(b) already cited.  
     12.     	Accordingly although the claimant’s periods of residence before May 2005 may well be of relevance on any future claim there could be no advantage to her on this appeal from remitting the case to another tribunal to consider whether they add up to a five-year continuous period of residence in exercise of Community law movement and residence rights (which as recently held by the Court of Appeal in McCarthy v Secretary of State [2008] EWCA Civ 641 is what has to be shown to establish a permanent right under Article 16) since that could only help her on a claim from 30 April 2006 onwards.
     13.     	There being no other basis in the evidence to indicate that the claimant had a relevant right to reside in the United Kingdom at the time of her income support claim, I set the the tribunal decision aside and confirm the original decision of 5 December 2005 that she was a “person from abroad” not qualifying for any income support on that claim.

(Signed)

P L Howell
Commissioner
23 September 2008