[2008] UKSSCSC CIS_4144_2007 (06 May 2008)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under section 14(8)(b) of the Social Security Act 1998:
I SET ASIDE the decision of the Reading appeal tribunal, held on 6 June 2007 under reference 175/07/00585, because it is erroneous in point of law.
I REMIT the case to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration. 
In particular, the tribunal must investigate and determine issuing arising from the claimant’s appeal of 12 January 2007 in accordance with the analysis in this decision. 

REASONS
2.	I have ignored page 6 of the papers; it refers to another claimant and is irrelevant to this appeal. 
History and background
3.	The claimant was born on 21 December 1984. She went to the Netherlands in 1990 and has Dutch nationality. While there, she worked in administration and McDonalds. She came to the United Kingdom on 25 June 2004 with her son in order to work and to learn English. 
4.	I do not know when the claimant first obtained work, but the evidence showed that she had ceased work on 9 October 2005. According to her letter of appeal, that work had lasted five months. According to her oral evidence to the tribunal, it had lasted six months. However, the Secretary of State has produced records to show that she was paid jobseeker's allowance for the inclusive period 28 May 2005 to 30 June 2005. I do not know how the claimant maintained herself before that period. 
5.	The records also show that she was paid jobseeker's allowance for the inclusive period 2 October 2005 to 15 July 2006. According to the claimant, she was then advised that, as she was pregnant, she should claim income support. She said she felt she could work, but made a claim for income support on 6 July 2006. She must have completed a claim form and a questionnaire about residence, but they are not in the papers before me. 
6.	The claimant was obviously right that she was able to work, because she obtained work for three months from September to November 2006. The tribunal saw the wage slips for this work. She was then awarded a jobseeker's allowance from 16 November 2006 and the award has continued, with two breaks, ever since. Her baby was born in January 2007.
7.	On 12 December 2006, the Secretary of State decided that the claimant did not have a right to reside and, as a result, her applicable amount for income support purposes was nil. The practical effect was that she was not entitled to any payment of income support.
8.	The claimant exercised her right of appeal and attended to give evidence at the hearing. The tribunal, which received no assistance from a presenting officer, allowed the appeal. According to the chairman’s decision notice:
‘The Appellant has a right to reside in the UK from the date of her claim (06/07/2006) as she is a “qualified person.”’
The chairman set out the explanation for this decision in his full statement of the tribunal's decision:
‘The Tribunal decided that the Appellant had been a “worker” for the purposes of Regulation 1612/68 before she claimed Income Support. She was then wrongly advised to claim Income Support. Had the Appellant been granted Job Seeker's Allowance and thereby remained in the labour market she would have retained the status of worker for the purposes of Regulation 1612/68. …
‘The Tribunal is satisfied that the Appellant has a right to reside in the United Kingdom from the date of her claim (06/07/2006) as she is a “qualified person”.’
9.	I gave the Secretary of State leave to appeal against that decision. The claimant has not made any observations on the appeal. 
How the tribunal went wrong in law
10.	The Secretary of State has submitted that the tribunal applied the law as it was in force before 30 April 2006 rather than the law as it came into force on that date. That is a charitable interpretation, because I am unable to detect any indication that that is what the chairman did. I am quite unable to understand the legal basis on which the chairman decided the case. It is certainly not apparent from anything that he said in either the decision notice or the statement. In those circumstances, his decision is wrong in law for being based on inadequate reasons. 
11.	It may help other tribunals faced with this complex legislation if I set out a structured approach to cases like this one. 
Income support legislation 
12.	Income support was established by the Social Security Act 1986. The relevant provisions have been consolidated by the Social Security Contributions and Benefits Act 1992. 
13.	Section 124(1) of the 1992 Act provides:
‘(1)	A person in Great Britain is entitled to income support if-
…
(b)	he has no income or his income does not exceed the applicable amount.’
14.	Section 135 provides: 
‘(1)	The applicable amount, in relation to any income-related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit.
(2)	The power to prescribe applicable amounts conferred by subsection (1) above includes power to prescribe nil as an applicable amount.’
15.	The Income Support (General) Regulations 1987 are made, in part, under that authority. Paragraph 17 of Schedule 7 to those Regulations prescribes that the applicable amount for a ‘person from abroad’ is nil. 
16.	‘Person from abroad’ is defined by regulation 21AA. This has been the governing provision since 30 April 2006. The current version provides:
‘Special cases: supplemental – persons from abroad
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)	A 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)	a self-employed person for the purposes of that Directive;
(c)	a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive; 
(d)	a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive;
(e)	a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive;
(f)	a person who is treated as a worker for the purpose of the definition of "qualified person" in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to—
	(i)	regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 (application of the 2006 Regulations in relation to a national of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia or the Slovak Republic who is an "accession State worker requiring registration"), or
	(ii)	regulation 6 of the Accession (Immigration and Worker Authorisation) Regulations 2006 (right of residence of a Bulgarian or Romanian who is an "accession State national subject to worker authorisation");
(g)	a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;
(h)	a person who has exceptional leave to enter or remain in the United Kingdom granted outside the rules made under section 3(2) of the Immigration Act 1971;
(hh)	a person who has humanitarian protection granted under those rules;
(i)	a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act and who is in the United Kingdom as a result of his deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom; or
(j)	a person in Great Britain who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.’
How to apply regulation 21AA
17.	It is important to start in the right place. That place is paragraph (4). Claimants who come within this paragraph are not persons from abroad. They will all have a right to reside and do not have to be habitually resident. 
18.	It is also important to notice that, for the most part, paragraph (4) refers to particular provisions of Directive 2004/38/EC rather than to the Immigration (European Economic Area) Regulations 2006 that implemented that Directive. 
19.	If a claimant does not come within paragraph (4), the logical place to start paragraph (1). This provides that in order not to be a person from abroad, a claimant must be habitually resident. This must be read together with paragraph (2), which provides that in order to be habitually resident, the claimant must also have a right to reside. 
20.	However, this is qualified by paragraph (3), which sets out circumstances in which a person cannot have a right to reside. So, for practical purposes in this type of case, it may be convenient to go to paragraph (3) before bothering with paragraphs (1) and (2). 
How to apply regulation 21AA to this case
21.	Begin with paragraph (4). The claimant might come within two grounds in this paragraph.
Paragraph (4)(a)
22.	When she claimed income support, the claimant was not a worker. She was not actually working and (if this is relevant) she did not have a contract of employment. 
23.	However, the tribunal had to consider the circumstances between the date of claim and the date of decision. In that period, the claimant worked for three months. I do not know how much she earned or how many hours she worked, because the chairman neither took copies of the payslips nor recorded the information on them. It is possible that (i) the work the claimant did was genuine and effective but nonetheless (ii) compatible with entitlement to income support. That is an issue for investigation at the rehearing. 
24.	In CH/3314/2005 and CH/3315/2005, Mr Commissioner Rowland analysed the decisions of the European Court of Justice and decided that effective employment was to be judged by reference to the level of income necessary to avoid resort to a claim for a social assistance benefit. I am not persuaded by his analysis, which does not seem to me to accord with the actual decisions of the European Court of Justice. Mr Rowland made a number of points about the consistent interpretation and application of the EC provisions to the different categories of persons who may have a right to reside. He has, with respect, not given sufficient significance to the fact that the freedom of movement of workers is a fundamental feature of the EC and is, accordingly, to be interpreted broadly. That seems to me to explain the differences that he was concerned to avoid. I direct the tribunal to apply the language of the decisions of the European Court of Justice and to decide as a matter of fact whether the claimant’s work was genuine and effective or marginal and ancillary. 
Paragraph (4)(c)
25.	Although the claimant was not a worker, at least at the time of her claim, she may have retained that status under paragraph 7(3) of the Directive. It provides:
‘(3)	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 has registered as a job-seeker with the relevant employment office; 
(c)	he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months; 
(d)	he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.’
26.	There is no evidence that the claimant came within (a) or (d). On the facts as I understand them, she did not come within (b). However, there is some uncertainty in her oral evidence to the tribunal or, perhaps, in the way it was recorded. That is an issue for investigation at the rehearing. That leaves (c). There is an issue whether it is possible under the law as in force from 30 April 2006 to register as a jobseeker for the purposes of income support, as was conceded in CIS/3315/2006. I am considering that issue in CIS/0184/2008 and the tribunal will have to consider whether to adjourn for my decision in that case if it is relevant to the outcome of this appeal. 
The termination of the award of jobseeker's allowance
27.	Claimants regularly tell tribunals that they were advised by the Jobcentre to apply for income support rather than jobseeker's allowance because they are lone parents. That advice, if it is given, is to their detriment. What can the tribunal do in these circumstances? The answer depends on whether the claimant was entitled to a jobseeker's allowance at the time when the advice was given.
28.	If the claimant was not receiving a jobseeker's allowance and was advised to claim income support, there may be a right to some compensation for bad advice. That is outside the tribunal’s jurisdiction and it can only draw it to the claimant’s attention. The tribunal has no power to treat the claim for income support as a claim for a jobseeker's allowance. In some cases, it is permissible to treat a claim for one benefit as a claim for another under regulation 9(1) of, and Schedule 1 to, the Social Security (Claims and Payments) Regulations 1987. However, claims for income support and jobseeker's allowance are not within those provisions.
29.	If the claimant was receiving a jobseeker's allowance and was advised to claim income support instead, the claimant has the right to appeal against two decisions: (i) the decision terminating jobseeker's allowance; and (ii) the decision refusing income support. Given the time taken to decide the income support claim, it is likely that an appeal against decision (ii) will be made outside the one month allowed to appeal against decision (i) by regulation 31 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. However, it is possible to extend time under regulation 32. The tribunal should always consider whether: (a) the terms of the appeal against (ii) are capable of covering (i); and (b) whether time should be extended under regulation 32. These are issues for consideration at the rehearing.
30.	In R(JSA) 2/04, Mr Commissioner Rowland dealt with position when an award for jobseeker's allowance was terminated and the claimant made a second claim. Claimants often seek to have their award on the second claim backdated. Mr Rowland decided that the claimant had two rights of appeal: one against the decision terminating the previous award and the other against the decision on the second claim. I asked the Secretary of State if that approach could be applied to this case. The representative has argued that it cannot and sought to distinguish this case from Mr Rowland’s on the ground that the evidence supplied on the second claim for jobseeker's allowance might provide grounds for revising the termination of the previous award. 
31.	I accept that the representative has identified a difference, but I do not accept that it is a distinction, because it overlooks the underlying basis for Mr Rowland’s decision. Although he did not mention it, he was applying an approach to social security adjudication that has been established for over half a century. The Commissioners have never insisted on strict compliance with legal form and have classified claims and applications by reference to their substance rather than their form. In R(I) 15/53, the Commissioner said (paragraph 4): ‘A demand for strict compliance with legal forms would operate harshly in many cases if applied to claimants’. And in R(I) 50/56, the Commissioner treated a claim as an application for review, saying:
‘18.	… it must be remembered that claimants may well fail to appreciate the appropriate legal procedures by which their rights ought to be protected and it is essential that the determining authorities should not defeat a meritorious claim by a legal technicality.’
This approach is not limited to social security. It has been applied to employment, Rent Act and planning cases. See the decision of the Employment Appeal Tribunal in Burns International Security Services (UK) Ltd v Butt [1983] ICR 547 and the authorities cited at pages 550 to 551. 
32.	The success of an appeal against the decision terminating jobseeker's allowance will depend on the grounds on which it was made. If it was based on the claimant’s withdrawal from her jobseeker's allowance award, there will be an issue whether she gave informed consent: CJSA/3979/1999 and CH/1815/2005. The withdrawal may have been expressed. More likely, it will be evidenced by her failure to continue signing on. There may also be an argument that the misleading advice would be an abuse of power on which the Secretary of State could not rely in accordance with CIS/6249/1999.
Disposal
33.	I allow an appeal and direct a rehearing.

Signed on original
on 06 May 2008	Edward Jacobs
Commissioner