[2005] UKSSCSC CIS_2680_2004 (12 August 2005)

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant's appeal to the Commissioner is disallowed. The decision of the Sutton appeal tribunal dated 31 March 2004 is not erroneous in point of law, for the reasons given below, and therefore stands.

2.	An oral hearing of the claimant's appeal to the Commissioner was held on 15 June 2005. The claimant attended for part of the hearing and was represented by Mr Desmond Rutledge of counsel from the Free Representation Unit (FRU). The Secretary of State for Work and Pensions was represented by Mr Nicholas Paines QC and Mr Paul Harris of counsel, instructed by the Office of the Solicitor to the Department for Work and Pensions. Mr Paines very properly mentioned that he sat part-time as a Deputy Social Security Commissioner. Mr Rutledge acknowledged that that raised no problem. I am grateful for the detailed submissions made and for the substantial further evidence about the Dutch social security system that has been provided after the hearing.

The background
3.	The appeal tribunal was concerned with the income support claim treated as made on 6 August 2003. On the claim form the claimant stated that she was born on 1 July 1981 and had no partner (she ticked divorced) and was claiming for her son then aged five. They had arrived in the United Kingdom on 4 August 2003 and her nationality was Dutch. The claimant was interviewed on 10 October 2003 when a special habitual residence form and a statement were completed. On that form she stated that she had arrived in the UK on 5 August 2003 and planned to stay for good. She had not lived in the UK before. They had brought all their clothes with them. Her statement was as follows:

	"I was born & brought up in Mogadishu in Somalia. In 1997 I went to live in Holland & gave birth to my son [MA] DOB 06.11.97. I lived on Income Support in Holland. Recently I had relationship with another man in Holland & had problems with him, so I came to live in UK. Before coming here I called a family friend [Mrs S] who lives in UK & who agreed to provide me accommodation. I arrived on 05/08/2003 & started living with [Mrs S] but she cannot support me for a long time because she is a lone parent & receives Income Support herself.

	I have no relatives or friends living in this country. My parents, 4 sisters, 6 brothers, uncles, aunts and all other relatives live in Somalia.

	I plan to support myself by claiming Income Support. I am not yet able to get myself registered with a doctor & have not yet been able to arrange a school for my son because both the doctor & school are already overloaded.

	I want to stay in UK for good. I have no financial means to support myself & need help because I am also pregnant but cannot provide a proof of my pregnancy at the moment."

4.	The decision was given on 22 October 2003 that the claimant was not entitled to income support because she was not habitually resident in the UK. She appealed, saying that she had come to settle permanently in England, had given up her Dutch benefits (income support, child benefit and lease of council flat) and was fleeing the violence of her boyfriend, who was the father of the child she was expecting, but not of her son. She had travelled on a one-way ticket.

5.	The written submission from the Secretary of State to the appeal tribunal was that the claimant did not fall into any of the categories deemed to be habitually resident and that, under the test approved by the House of Lords in Nessa v Chief Adjudication Officer [1999] 1 WLR 1937, R(IS) 2/00, by 22 October 2003 there had not an appreciable period of residence such as to give the residence the character of habitual residence. Following an adjournment for the claimant to seek advice, Ms Angela Morris of FRU produced a written submission accepting that the claimant did not fall into any of the deemed categories but arguing that she had a settled intention to remain in the UK from the outset and that the condition of an appreciable period was met from the date of claim. Some further information was put forward. The claimant and her son had been registered with a doctor from November 2003 and he started at school in the same month. Two further claims for income support had been disallowed, but the appeals against those decisions had not been linked with the appeal against the decision of 22 October 2003. It is now known that the first of those other appeals was eventually successful in part and that the claimant was awarded income support from and including 16 December 2003 on the basis that she was habitually resident in the UK from that date.

The appeal tribunal's decision
6.	The claimant attended the hearing on 31 March 2004 with Ms Morris and with an interpreter present. She gave quite a bit of evidence about the violence and abuse from her partner and why she felt that she had to leave her flat in the Netherlands and that she could not stay in the country. In brief, because of her feelings for her partner, she would not have been able to bar him from her flat. She also said that she had not done any paid work of any kind in the Netherlands, that she had brought 500 euros with her to the UK, that she had not had any valuable possessions and that she had given away most of her furniture as it was secondhand. The appeal tribunal disallowed the appeal and confirmed the decision of 22 October 2003. The essence of the reasons was that 11 weeks after the date of arrival sufficient time had not elapsed for the claimant to be habitually resident. The statement of reasons contained the following:

	"I noted that her connections with the UK were extremely tenuous; it was a friend of her mother's who lived here and all her relations appeared to be either in [Holland] or in Somalia. I noted what she said about the situation in the Somali community in [Holland] and the situation between herself and her brother and sister when the relationship with her partner broke down. I noted that she was not living with her partner, but nevertheless when he became abusive she continued to let him come in to her flat. She could not really explain to me why she did this. She did not attempt to re-establish contact with her brother and sister [in the Netherlands] when her relationship broke down, but chose to come here to the UK instead, to a country where she knew only one person and where she did not speak the language. I appreciated that she had brought anything she owned of any value with her, mostly her own and her son's clothes. She had made attempts to get her son into school when she arrived and this was achieved in November 2003. However, I also noted that she had not brought any furniture with her and appears to have given most of it away; nor did she make any attempt to be rehoused in Holland. I found the reason she gave for this insufficient to indicate that she had been obliged to flee the country so as to get away from her former partner."

7.	The claimant now appeals against the appeal tribunal's decision with my leave. When granting leave I said that I did not find the grounds put forward (that on the facts found the claimant should have been found habitually resident) persuasive, but that it was arguable that the appeal tribunal should have considered whether the claimant was entitled to the benefit of Article 10a of Council Regulation (EEC) No 1408/71 on special non-contributory benefits and a test of (habitual) residence under which length of residence could not be a conclusive factor (Swaddling v Adjudication Officer (Case C-90/97), R(IS) 6/99). I said that as the claimant had been in receipt of the equivalent of income support and child benefit in the Netherlands, she would seem to have been subject to the social security legislation of the Netherlands so as to satisfy Article 2(1) of Regulation 1408/71.

8.	The first response from the Secretary of State was to say that as the claimant had never worked she could not be an employed or self-employed person within Article 2(1), so that Regulation 1408/71 could not apply. The grounds put forward for the claimant were rejected. In a direction dated 15 December 2004 I said that I did not find the question of whether a person was an employed or self-employed person within Article 2(1) so straightforward and continued:

	"2.	That is first because those terms are defined in Article 1(a) of ... the Regulation. The definition is complicated and can, for instance, cover under sub-paragraph (i) a person who is insured for one or more of the contingencies covered by a branch of a social security scheme for employed or self-employed persons, without the person being in an employment relationship. I have in mind the principles stated in paragraphs 85 and 86 of the ECJ's judgment in Sürül v Bundesanstalt für Arbeit (Case C-292/96) [1999] ECR I-2685:

		`85. Second, it must be borne in mind that according to settled case-law the definition of `worker' in Article 1(a) of Regulation No 1408/71 `for the purpose of this regulation' is of general scope and in the light of that consideration covers any person who has the status of a person insured under the social security legislation of one or more Member States, whether or not he pursues a professional or trade activity (see Case 182/78 Algemeen Ziekenfonds Drenthe-Plattenland v Pierik [1979] ECR 1977, paragraph 4). That expression means any person who is insured under one of the social security schemes mentioned in Article 1(a) of Regulation No 1408/71 for the contingencies and under the conditions mentioned in that provision (see Case C-2/89 Kits van Heijningen [1990] ECR I-1755, paragraph 9).

	 	86. It follows that, as the Court has also stated in relation to Regulation No 1408/71 in Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 36, and Case C-275/96 Kuusijärvi [1998] ECR I-3419, paragraph 21, a person who has the status of worker where he is covered, even if only in respect of a single risk, on a compulsory or optional basis, by a general or specific social security scheme, irrespective of the existence of an employment relationship."

	In Sürül, the claimant was deemed to have paid compulsory pension contributions while bringing up a child under three and it was suggested that she therefore came within the definition in Article 1(a) although her residence authorisation in Germany did not allow her to engage in gainful employment.

	3.	In the present case, the claimant has said that she received child benefit in the Netherlands. I do not know whether the Dutch social security system is such that the award of such a benefit (if it was in fact awarded) entails a prior recognition of cover for family benefits in a social security scheme for employed or self-employed persons or that contributions to such a scheme would be deemed to be made while in receipt of child benefit. If the Dutch scheme is not one for employed or self-employed persons, but is for all residents or for the whole of the working population, then the relevant part of the definition in Article 1(a) of Regulation 1408/71 would appear to be sub-paragraph (ii), or possibly (iv) if there were any evidence of voluntary insurance. I find the meaning of the definition in sub-paragraph (ii) and its relationship to Annex I difficult to follow. However, I think (subject of course to any submissions to be made) that it would be the case that if the claimant in the present case had been within the definition of employed or self-employed person while in the Netherlands she would fall within the personal scope of Regulation 1408/71 after moving to the United Kingdom."

9.	I do not need to go through the written submissions that followed, as the proper interpretation of Articles 1(a) and 2(1) of Regulation 1408/71 in defining the its personal scope was one of the main topics of the oral hearing that I directed.

Was the claimant within the personal scope of Regulation 1408/71?
10.	Article 2(1) provides:

	"1. This Regulation shall apply to employed or self-employed persons and to students who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as members of their families and their survivors."

Article 1(a) provides that for the purpose of the Regulation:

	"(a) employed and self-employed person mean respectively:
		 (i)	any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed or self-employed persons or by a special scheme for civil servants;
		(ii)	any person who is compulsorily insured for one or more of the contingencies covered by the branches of social security dealt with in this Regulation, under a social security dealt with in this Regulation, under a social security scheme for all residents or for the whole working population, if such person:
			 -	can be identified as an employed or self-employed person by virtue of the manner in which such scheme is administered or financed, or
				failing such criteria, is insured for some other contingency specified in Annex I under a scheme for employed or self-employed persons, or under a scheme referred to in (iii), either compulsorily or on an optional continued basis, or, where no such scheme exists in the Member State concerned, complies with the definition given in Annex I;
	           (iii)	any person who is compulsorily insured for several of the contingencies covered by the branches dealt with in this Regulation, under a standard social security scheme for the whole rural population in accordance with the criteria laid down in Annex I;
		(iv)	any person who is voluntarily insured for one or more of the contingencies covered by the branches dealt with in this Regulation, under a social security scheme of a Member State for employed or self-employed persons or for all residents or for certain categories of residents:
			 -	if such person carries out an activity as an employed or self-employed person, or
			 -	if such person has previously been compulsorily insured for the same contingency under a scheme for employed or self-employed persons of the same Member State;"

Annex I contains an entry for the Netherlands, but merely that any person pursuing an activity or occupation without a contract of employment is to be considered a self-employed person within the meaning of Article 1(a)(ii). There is no suggestion that the claimant here pursued any sort of activity or occupation in the Netherlands that could have triggered that provision.

11.	I can summarise the relevant elements of the Dutch social security system as I understand it to have operated when the claimant was there, without any detailed reference to source material. Child benefit is provided under the Algemene Kinderbijslagwet (AKW). All residents under the age of 65 qualify for payments if they have a qualifying child, as do those who work in the Netherlands. There is a variety of schemes for unemployment, sickness and long-term disability for which qualification is linked to insurance contributions paid as an employee. There are also schemes to supplement benefits under such schemes, but the Algemene Bijstandswet (ABW), usually translated as the National Assistance Act, provided a minimum income for all residents whose resources were inadequate to meet essential living costs. The ABW was administered by local authorities subject to national standards. The claimant may well have received this benefit. Single parents with children under the age of five were exempted from the obligation to look for work. Of particular importance is the Algemene Ouderdomswet (AOW), the National Old Age Pensions Act. Qualification is based on legal residence, regardless of nationality or work status, or alternatively on employment in the Netherlands. Entitlement to 2% of the full rate of the basic pension is accrued for each year of insurance (ie residence or employment) from the person's 15th birthday to her 65th. The scheme is financed through income tax.

12.	A number of points follow. The claimant would seem, by her qualification for the benefits that she said that she had received, to have been subject to the social security legislation of the Netherlands at least concerning a branch of social security specified in Article 4(1) of Regulation 1408/71, ie family benefits. As "insured" in Article 1(a) must include a situation where qualification for benefit depends on residence, she was compulsorily insured for that contingency through qualification under the AKW. Her possible qualification for the ABW is probably irrelevant since, as a general social benefit, it did not cover any specific contingency in Article 4(1) and was not listed in Annex IIa as a special non-contributory benefit within Articles 4(2a) and 10a. The claimant was also insured, by reason of her residence, for the contingency of old-age benefits through her automatic accrual of entitlement under the AOW. Thus, because the Dutch system differs fundamentally from the German system, based on contributions, the problem raised in Sürül of the effect of crediting of contributions in certain circumstances simply does not arise. Without any record of employment or self-employment, the claimant would not have qualified for any of the Dutch schemes linked to employment or to contributions.

13.	In the terms of Article 1(a), it is plain that the claimant did not fall within either sub-paragraph (iii) or (iv). She did not fall within sub-paragraph (i), because the schemes identified above under which the claimant was insured were not schemes for employed or self-employed persons (or for civil servants). It is plain from the contrast with sub-paragraph (ii), and from the cases mentioned below (in particular, Brack, discussed in paragraphs 17 to 19), that sub-paragraph (i) applies only to schemes restricted to employed or self-employed persons. A scheme does not fall within sub-paragraph (i) if insurance covers such persons within a broader range of persons covered. The claimant would, though, have fallen solidly within the main condition in sub-paragraph (ii). She was compulsorily insured for the contingencies of family benefits and old-age benefits under social security schemes for all residents. However, the question is whether she satisfied the proviso to sub-paragraph (ii). As Annex I has no relevance in the present case, the claimant would need to be "identified as an employed or self-employed person by virtue of the manner in which the scheme is administered or financed". Mr Paines submitted that the plain words of that test (which he said the claimant did not meet) had to be applied. Mr Rutledge submitted that that test had been overtaken by the need to apply fundamental principles of EC law to the increasing prevalence of non-contributory benefits. He said that the principles laid down by the ECJ in Sürül and many other cases made the controlling factor whether the claimant has been covered in respect of at least one specified contingency by a general or specific social security scheme, irrespective of the existence of an employment relationship.

14.	Mr Paines emphasised the particular factual problems being addressed in the cases mentioned in paragraph 8 above. In Pierik, the claimant had been an employee and the question was whether he was still within the definition of "worker" for the purpose of Regulation 1408/71 after he had become entitled to draw a pension under the social security scheme to which he had contributed as an employee. It was in that context that the ECJ stated that he was a worker although not pursuing a professional or trade activity. A similar point was made in Laborero and Sabato v Office de sécurité sociale d'outre mer (Cases 82 and 103/86) [1987] ECR 3401, where it was said in paragraph 19 that the status of worker has to be determined in relation to the period in which the insured person participated in the social security scheme in question. In Bestuur van de Sociale Verzekeringsbank v Kits van Heijningen, the issue was simply whether a person who worked only for two hours a day on two days a week was excluded from the meaning of worker. In Martínez Sala v Freistaat Bayern, the claimant had previously been an employee, presumably paying contributions for a pension, and may later have been deemed to make employee's contributions, so that the ECJ's statement in paragraph 36, relying on Pierik and Laborero and Sabato, was not intended to go wider than those cases. In Kuusijärvi v Riksförsäkringsverket, the claimant had worked in Sweden only before Regulation 1408/71 came into force there and the question was whether she was still a worker. In Sürül, the claimant had been deemed to have made contributions to the statutory pensions insurance scheme, which was according to the Advocate-General a scheme solely for employed or self-employed persons. In addition, in paragraph 9 of Kits van Heijningen, in paragraph 20 of Kuusijärvi and in paragraph 85 of Sürül, the ECJ specifically made its statement about the scope of the definition in Article 1(a) subject to "the conditions mentioned in that provision".

15.	I accept Mr Paines' submission that, taking account of the contexts and of the specific references to the conditions mentioned in Article 1(a), none of the apparently very broad statements of principle cited above deprive the proviso to Article 1(a)(ii) of its force and effect. Merely having been subject to the social security legislation of one or more Member States does not necessarily bring a person within the personal scope of Regulation 1408/71. I also accept that, although there might be some disparity between the consequent limitations on the class of persons within the personal scope of the Regulation and the expansion of its material scope in 1992 to include special non-contributory benefits, the amending Regulation deliberately did not make any change to the personal scope of Regulation 1408/71. The Preamble to Regulation 1247/92 recognised a need to grant special non-contributory benefits, "in respect of persons falling within the scope of Regulation (EEC) No 1408/71", solely in accordance with the legislation of the person's country of residence. Thus it was accepted that, for better or worse, the existing personal scope of the Regulation was to continue to apply.

16.	Mr Paines then relied on the plain meaning of the proviso to Article 1(a)(ii) and submitted that within the Dutch social security schemes for all residents the claimant could not be identified as an employed or self-employed person by anything to do with the administration or financing of the scheme. There is some assistance to be gained from some rather early cases, not referred to in any submissions, decided at a time when the definition in Article 1(a) covered only employed persons and not self-employed persons.

17.	In Brack v Insurance Officer (Case 17/76) [1976] ECR 1429, the claimant had been an employee in Britain and paid the appropriate national insurance contributions for nine years and then became self-employed and paid the appropriate contributions down to and beyond his 65th birthday. He went to France for a convalescent holiday, during which period he was not required to pay contributions. He fell ill while there and after his return to Britain was, rightly under the British legislation, refused sickness benefit for the period on the ground of absence from Great Britain. The ECJ was asked, among other things, whether the claimant could, notwithstanding that he was currently self-employed, be identified as a an employed person for the purposes of Article 1(a)(ii) by reason of the fact that his title to benefit was constituted to a material extent by his having paid or been credited with contributions as an employed person.

18.	The ECJ regarded the social security scheme for sickness as one for the whole working population and held this in paragraphs 28 and 29 of its judgment:

	"28. Consequently the provision must be understood as referring also to persons who are not `employed persons' within the meaning of the law of employment but who must be treated as such for the purposes of applying Regulation No 1408/71, taking account on the one hand of the objectives and of the spirit of this regulation and of Articles 48 to 51 of the Treaty which form its basis and, on the other hand, of the special features of the administration or financing of the scheme to which such persons are affiliated and of the changes which have taken place in the nature of that affiliation.

	 29. Those conditions are fulfilled in cases like the present which are distinguished by the fact that on the one hand the person concerned also paid contributions as an employed person to the financing of the relevant scheme and on the other hand that his entitlement to sickness benefits in cash at the full rate depends upon taking account of those contributions."

Part of the reasoning leading to that conclusion was that as Regulation 1408/71 covers certain persons who have lost the status of employed person (see Article 2(1)) and indeed were no longer insured under the social security scheme, it could not be excluded that it covers persons who had lost the status of employed person but remained compulsorily insured under the same scheme (paragraph 24). The claimant did not cease to be compulsorily insured because of the fact that for certain limited periods, such as a stay abroad, payment of contributions was optional (paragraph 16).

19.	That ruling was sufficient to enable the Commissioner to rule that the claimant in that case was not disqualified for sickness benefit during his absence abroad, by virtue of Article 22(1)(a)(ii) of Regulation 1408/71 (R(S) 2/77, and see R(S) 1/78 for an application in slightly different circumstances).

20.	In Caisse Primaire d'Assurance Maladie d'Eure-et-Loir v Tessier (Case 84/77) [1978] ECR 7, the claimant was a French national who had worked as an au pair in the UK, although it was not known whether she was obliged to pay national insurance contributions. On her return to France a claim for sickness insurance benefits was disallowed on the grounds that she had not completed the required number of hours of employment and was not a migrant worker within the meaning of Regulation 1408/71. It was argued that she was covered by the Regulation because of her entitlement while in the UK to treatment under the National Health Service, a social security scheme for all residents. The ECJ held that the claimant could only be identified as an employed person through the operation of a special provision for the UK in Annex V that all persons required to pay contributions as employed persons were to be regarded as workers, which condition would have to be investigated by the national court. Thus, the ECJ accepted (see paragraph 12 of the judgment) that there were no criteria in the way in which the National Health Service scheme was administered or financed that enabled the claimant to be identified as an employed person. The evidence was that the scheme applied to all ordinary residents and on a discretionary basis to visitors from other countries, irrespective of whether they were in gainful occupation.

21.	Those cases seem to me to point to the importance as a factor of the making of contributions as an employed person to a scheme and of entitlement depending to some extent on having made contributions, without ruling out other ways of identifying a person as an employed (or now self-employed) person. In the present case, I have no doubt on the basis of the evidence described above about the nature and financing of the Dutch AKW, ABW and AOW schemes that there was nothing in the manner in which any of those schemes are administered or financed that identified, or even went any distance towards identifying, the claimant in the present case as an employed or self-employed person. The special factor that was present in Sürül, of deemed contributions to a retirement pension scheme for employed persons, is not present here. The claimant accrued entitlements to a Dutch retirement pension while she lived there, but only on the basis of residence, irrespective of whether or not she was engaged in any occupational or professional activity. The fact that there was an alternative qualification under the AKW and the AOW on the ground of work in the Netherlands does not help her, as her qualification was based purely on the main ground of legal residence.

22.	Thus, the claimant was not within the personal scope of Regulation 1408/71 and could not therefore claim the benefit of Article 10a(1) even if she could show residence in the UK under the principles laid down in Swaddling rather than the domestic British test of habitual residence.

Discrimination on the ground of nationality
23.	Could the claimant nevertheless rely only her status as a citizen of the European Union, legally resident in the UK, as the basis for an argument that the domestic habitual residence test could not be applied to her as it discriminated against her on the ground of her nationality? Mr Rutledge submitted that she could. Mr Paines submitted that she could not.

24.	Before dealing with that broad question, I can dispose of one particular submission made by Mr Rutledge. He said that, as the claimant as a citizen of the Union had exercised a Community right in moving from the Netherlands to the UK, the principle of Swaddling thereby applied and the test laid down there rather than the domestic habitual residence test had to be applied to her for income support purposes. I do not really follow that submission, which seems to confuse two lines of authority. Swaddling was concerned with the meaning of residence and habitual residence for the purpose of Regulation 1408/71 and in particular Article 10a. I can see nothing that follows from the mere fact that the claimant had to be admitted to the UK as a citizen of the Union that brings the principles of Swaddling into play.

25.	I do not need to go into all the elements of the principles involved, which I have recently dealt with at some length in my decision in CJSA/4065/1999 following the ECJ's decision in Collins v Secretary of State for Work and Pensions (Case C-138/02). I am prepared to reach a decision on the basis adopted by Mr Paines, although he did not accept that the claimant could rely on Article 12EC of the EC Treaty in any sense relevant to the present case. His submission was that, even if it were accepted that the claimant was entitled not to be discriminated against on the ground of nationality in the provision of a benefit like income support and that the domestic habitual residence rule did discriminate on that ground, because it was less likely to be satisfied by nationals of other Member States than by British nationals, there was objective justification of the discriminatory effect.

26.	In Collins, the ECJ held, relying to some extent on D'Hoop v Office national de l'emploi (Case 224/98) [2002] ECR I-6191, that it could be regarded as legitimate for a Member State to grant an allowance such as the income-based jobseeker's allowance (JSA) in issue in that case "only after it has been possible to establish that a genuine link exists between the person seeking work and the employment market of that State". And it was accepted that a residence requirement is in principle appropriate for the purpose of ensuring such a connection, subject to the limits of proportionality. The requirement of a link with the employment market reflected the nature of JSA as a benefit limited to those who are seeking work, as did the similar expression of the requirement in D'Hoop, where the benefit in issue was a Belgian tideover allowance payable to young people who had completed their education and were seeking their first job. The difficulties that followed in Collins, and that I had to try to resolve in the final decision implementing the ECJ's decision (although there is an appeal to the Court of Appeal pending), stemmed from the terms used by the ECJ in suggesting how far and for how long the relevant authority would have to be satisfied that the person in question was genuinely seeking work for a link to exist. The fundamental principle is a more general one.

27.	That is shown by the judgment of the ECJ in R (on the application of Bidar) v London Borough of Ealing (Case C-209/03), which concerned the condition of entitlement to student support in the form of a loan under UK legislation that the applicant had been ordinarily resident in the UK throughout the three years preceding the start of the relevant course. That form of assistance was held to fall within the scope of the prohibition on discrimination on the ground of nationality in Article 12EC and the residence rule was held to place nationals of other Member States at a disadvantage, so that objective justification was necessary. The judgment included the following:

	"56. On this point, it must be observed that, although the Member States must, in the organisation and application of their social assistance systems, show a certain degree of financial solidarity with nationals of other Member States (see Grzelczyk [v Centre public d'aide sociale d'Ottignies (Case C-184/99) [2001] ECR I-6193], paragraph 44), it is permissible for a Member State to ensure that the grant of assistance to cover maintenance costs of students from other Member States does not become an unreasonable burden which could have consequences for the overall level of assistance that may be granted by that State.

	 57. In the case of assistance covering the maintenance costs of students, it is thus legitimate for a Member State to grant such assistance only to students who have demonstrated a certain degree of integration into the society of that State.

	 58. In this context, a Member State cannot, however, require the students concerned to establish a link with its employment market. Since the knowledge acquired by a student in the course of his higher education does not in general assign him to a particular geographical employment market, the situation of a student who applies for assistance to cover his maintenance costs is not comparable to that of an applicant for a tideover allowance granted to young persons seeking their first job or for a jobseeker's allowance (see, in this regard, D'Hoop, paragraph 38, and Case C-138/02 Collins [2004] ECR I-0000, paragraph 67, respectively).

	 59. On the other hand, the existence of a certain degree of integration may be regarded as established by a finding that the student in question has resided in the host Member State for a certain length of time.

	 60. With respect to national legislation such as the Student Support Regulations, the guarantee of sufficient integration into the society of the host Member State follows from the conditions requiring previous residence in the territory of that State, in this case three years' residence required by the United Kingdom rules at issue in the main proceedings."

Thus the application of the three year residence test was justified, but an additional test that the student should have settled status was not justified, as it could prevent a student who had established a genuine link with UK society from receiving assistance (paragraph 61).

28.	To this point, at the level of the principles to be applied on justification, I do not think that there was any real disagreement between Mr Rutledge and Mr Paines. But there was disagreement as to the result. Mr Rutledge relied on Bidar as showing the importance of taking into account the objectives of freedom of movement within the European Union, which objectives went well beyond the merely economic. If the present case was looked at as one of a national of another Member State coming to the UK to seek the support of an established Somali community, then the financial solidarity mentioned in paragraph 56 of Bidar should be given full weight, notwithstanding that the claimant had not moved specifically to seek work and was not economically active. He also submitted that it was important, and a distinction from the facts in Collins and Bidar, that the claimant had the sole care of a young child and had been receiving family benefits in the Netherlands. He submitted, I think, that that added weight to the demands of financial solidarity.

29.	Mr Paines submitted that whether or not a person had care of a child could not affect the question of whether in Community law there was objective justification for discrimination on the ground of nationality. Otherwise, he relied on the reasoning of the ECJ in Collins (showing that a residence test was in principle appropriate for testing the genuineness of a person's link to, in the case of a general social benefit based on need, UK society or to the UK in general) and on my reasoning in the final decision in CJSA/4065/1999. In particular, he relied on the proposition that a residence test involving the expiry of some length of time could be acceptable in terms of justification, since the national authority might only be satisfied that a link has been established after the expiry of some time. He also referred to the absence of any other control measures in a non-contributory scheme in the context that nationals of other Member States are allowed entry to the UK on production of a passport (see paragraph 56 of Bidar).

30.	On the issue of justification, I accept Mr Paines' submissions for the Secretary of State. I have no doubt, from the general principles laid down in Collins and Bidar, that it is legitimate for the UK to use a residence test in relation to income support as the way of ensuring that a national of another Member State has a sufficient link to UK society. That conclusion does not depend on the particular difficulties in relation to JSA raised in the Collins case, so that there is no need to wait for the outcome of the appeal to the Court of Appeal in that case. Any assumed discriminatory effect of the use of the UK domestic habitual residence test is therefore justified, if the use of the test meets the condition of proportionality. For the reasons given in paragraphs 36 to 43 of CJSA/4065/1999, the test meets the conditions that it rests on clear criteria known in advance and that there is a means of judicial redress. Further, the test is not, even with the requirement of the expiry of an appreciable or sufficient period as a condition rather than a mere factor, one that in its nature would prevent a person who had established a sufficient link to UK society from being entitled to income support. It is not like the condition about settled status in Bidar or the rule about secondary education having been completed in Belgium in D'Hoop. It probably must be asked in every case whether the application of the test to the particular circumstances has the result of denying benefit to a person who has established a sufficient link to UK society. For the reasons given in paragraph 37 below, I conclude that the application of the test in the present case did not breach that condition.

31.	Accordingly, the application of the domestic habitual residence test in the present case is not prevented by any Community law prohibition on discrimination on the ground of nationality.

Conclusions
32.	The result of paragraphs 10 to 31 above is that, as the claimant did not fall within the personal scope of Regulation 1408/71 and as any discriminatory effect is justified under EC law, the domestic test in accordance with Nessa had to be applied. That was the test applied by the appeal tribunal. It should arguably have given consideration to the Regulation 1408/71 point, given the very limited information before it about the Dutch social security system, and possibly also the discrimination point, even though neither had been raised by the claimant's representative. However, as I have concluded that neither point is to be decided in the claimant's favour, it would be an empty formality to find that the appeal tribunal erred in law by failing to consider either of them and then to substitute a decision that neither point helped the claimant. The appeal tribunal did not err in law in a material respect in failing to deal with either point.

33.	On the application of the Nessa approach, Mr Rutledge submitted that the appeal tribunal drew unwarranted inferences from the claimant's evidence about the abuse and violence that she had suffered from her partner in the Netherlands and from what it saw as her inability to explain why she continued to let her partner come to her flat. He said that similar responses, not readily explainable to outsiders, were common in cases of domestic violence and that the claimant's evidence should not have been regarded as not credible or as of reduced weight because of her inability to give any further explanation. He also submitted that the appeal tribunal may have applied an inappropriate test in asking whether she had been obliged to flee the Netherlands.

34.	However, I agree with Mr Paines that the appeal tribunal did not doubt that the claimant had suffered domestic violence and took that into account as a factor, along with other factors (such as whether she could have got away from her partner by being rehoused somewhere else in the Netherlands). The appeal tribunal did not apply a test that the claimant could only have been habitually resident in the UK if she had been obliged to flee the Netherlands, but again took that into account as one of many factors. It was for the appeal tribunal to weigh up all the relevant factors and to reach a judgment as to whether on any date from 6 August 2003 down to 22 October 2003 (or possibly 6 November 2003: see below) the claimant was habitually resident in the UK. That required a general assessment of whether, in all the circumstances, a sufficient period had expired for the claimant's residence to have acquired the quality of habitual residence. In my view, the appeal tribunal's judgment against the claimant was well within the area of reasonableness given to it. In the particular circumstances set out by the appeal tribunal, despite the claimant's intention to stay in the UK indefinitely, there was still a real possibility after 11 weeks that things might not work out and that the claimant might not remain resident here. The appeal tribunal clearly took into account that the claimant was the sole carer of her son and that her centre of interests would inevitably be where her son was. But, by the same token, her son would be wherever the claimant was, so that the primary focus remained on the quality of the claimant's own residence, although factors to do with her son (such as her attempt, so far unsuccessful, to get him into school) would be relevant.

35.	Nor is the appeal tribunal to be faulted in law for any failure of adequate explanation. In retrospect, the chairman might well think that at some points findings, for instance about the claimant's relationship with her partner, could have been better expressed, but the essence of the appeal tribunal's judgment and its evaluation of the relevant factors was sufficiently clearly set out.

36.	A doubt about the dates considered by the appeal tribunal is raised by Mr Commissioner Rowland's decision in CIS/1840/2004. There he held that, if all that is preventing a finding of habitual residence is that insufficient time had elapsed at the date of decision, the decision maker and an appeal tribunal on appeal should consider the power (for income support cases) in regulation 13(1) of the Social Security (Claims and Payments) Regulations 1987 to make an advance award starting not more than three months after the date of claim when, unless there is a change of circumstances, the conditions of entitlement will be satisfied on the advance date. Mr Paines submitted that that holding was wrong in law and the decision is under appeal to the Court of Appeal. However, I am satisfied that in the present case the appeal tribunal would have taken no different view of the circumstances as they would have been after the expiry of three months than it took of them after the expiry of 11 weeks. Therefore, regardless of the outcome of the appeal against CIS/1840/2004, there was no error of law in the appeal tribunal's not considering whether a advance award could be made from a date after 22 October 2003.

37.	The same reasons that have led me to conclude above that the appeal tribunal's judgment that the claimant was not habitually resident in the UK by 22 October 2003 was well within the bounds of reasonableness also lead me to conclude that by that date she had not established a sufficient link with UK society to require payment to her of income support under the principles of Collins and Bidar. Essentially the same factors as identified by the appeal tribunal and mentioned in paragraph 34 above are relevant. The claimant was still at the stage on 22 October 2003 or on 6 November 2003 where things might not have worked out. There was not yet at that point a firm or genuine or concrete link with UK society. The application of the test by the appeal tribunal did not produce a result that went beyond the test of proportionality in relation to any otherwise justified discrimination on the ground of nationality under EC law.

38.	Accordingly, the appeal tribunal made no error of law in its application of the UK legislation and the claimant's appeal must be dismissed.

	(Signed)         J Mesher
	Commissioner

	Date:   12 August 2005