[2007] UKSSCSC CIS_1545_2007 (20 September 2007)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under section 14(8)(a)(ii) of the Social Security Act 1998:
I SET ASIDE the decision of the Fox Court appeal tribunal, held on 29 January 2007 under reference 242/06/03235, because it is erroneous in point of law.
I make finding of fact and give the decision appropriate in the light of them.
I FIND as fact that the claimant’s daughter is not a dependent child of her father. 
My DECISION is that (i) the decision awarding income support to the claimant from and including 25 October 2005 is superseded and (ii) from and including 29 March 2006 the claimant’s applicable amount for the purposes of her entitlement to income support is nil so that she is not entitled to any payment. 

REASONS
2.	This is an appeal by the Secretary of State brought with my leave against the decision of the appeal tribunal, which allowed the claimant’s appeal against the Secretary of State’s decision. 
Structure of this decision
3.	I first set out the facts. Then I explain why I must set aside the tribunal’s decision. Next I explain that there was a valid decision that could be the subject of an appeal to an appeal tribunal. Finally, I explain why the claimant did not have a right to reside in the United Kingdom. 
The facts 
The claimant’s personal circumstances 
4.	The claimant is Polish and was born on 11 October 1972. She entered the United Kingdom on 1 February 2004. She then worked as an au pair until 3 November 2004, when she was dismissed for becoming pregnant outside marriage. Thereafter, she worked for two months as a cleaner. She had formed a relationship with a Frenchman (Mr A), who is a student and supported by his mother. The claimant and Mr A lived together from May 2005 and their daughter, Victoria, was born on 5 August 2005. After her birth, the couple’s relationship deteriorated and the claimant left with her daughter. In attempting to become reconciled, the couple lived together for short periods, but without success. The claimant has since had another child by Mr A. He sees Victoria for contact about twice a week and makes irregular financial contributions, which average about £10 a week.
5.	The claimant has no Worker’s Registration Certificate. She enrolled at a college to study English and Maths, but I am not sure whether that was before or after 29 March 2006.
The claimant’s benefit position
6.	This was unclear at the time of the hearing before the tribunal. As a result of information provided to the Commissioner, I now know what happened. The claimant claimed income support on 25 October 2005. An award was made and remained in payment until 28 March 2006. On 24 March 2006, a specialist decision-maker determined that the claimant had no right to reside in the United Kingdom. On 29 March 2006, another decision-maker decided that the claimant was no longer entitled to any income support and payment ceased with effect from that date. This followed from the previous determination that the claimant had no right to reside. As a result of that determination, her applicable amount for income support purposes was nil. The claimant’s appeal to the appeal tribunal was against the decision of 29 March 2006.
Why I must set aside the tribunal’s decision
7.	It is inevitable that I must set aside the tribunal’s decision because of the form in which it was given. 
8.	The tribunal decided that (i) there was no decision under appeal, (ii) that if there was, the tribunal revised it and (iii) in either event the claimant was entitled to income support from 25 October 2005 and continuing from 24 March 2006. 
9.	That form of decision is so hopelessly confused that I do not understand why the district chairman did not grant leave to appeal or deal with the case under section 13(2) of the Social Security Act 1998. 
10.	Tribunals must act within their statutory jurisdiction, because that defines the limits of their power. They must act judicially, because that is their nature. They must decided the issues that arise for resolution, because that is their function. And they must make decisions that are clear, sufficiently complete and capable of being implemented, because the discharge of their duty to decide the issues judicially must be effective. The tribunal’s decision in this case does not meet those standards. 
11.	Decisions (i) and (ii) are incompatible with each other and inconsistent with the tribunal’s duty to make a decision. It is permissible for a tribunal to make a decision in form (i) or in form (ii). It is not permissible to make a decision in form (i) and (ii) in the alternative, because that (a) effectively leaves to one of the parties (the Secretary of State) to decide which is right and (b) thereby abdicates the tribunal’s judicial responsibility to make a decision. 
12.	Moreover, decision (iii) is incompatible with decision (i). How could the tribunal purport to make a decision on entitlement in either event – in other words even if there was no decision on which to found any appeal? That is to assume a jurisdiction that is original, not appellate. The tribunal has no original jurisdiction, except in the limited cases of referrals of applications for a departure direction or a variation in child support.
The decision under appeal
13.	The decision made on 29 March 2006 was recorded as ‘COC’s EOC’, which means ‘change of circumstances end of claim’. That is wrong, because there was no change of circumstances. The decision could only have been made under regulation 6(2)(b)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. This authorises supersession if:
‘the decision was erroneous in point of law, or it was made in ignorance of, or was based upon a mistake as to, some material fact’.
It is not necessary to decide whether the decision awarding income support was made in error of law or of fact, because the effective date of the supersession is the same. It took effect from the date it was made (29 March 2006) under section 10(5) of the Social Security Act 1998. Moreover, the precise effective date is irrelevant, because there can be no issue of recovering the benefit already paid from the claimant. 
14.	So the decision under appeal was made on 29 March 2006. It superseded, with effect from that date, the decision awarding income support and substituted a decision that the claimant’s applicable amount for income support purposes was nil.
Right to reside
15.	The claimant is subject to the Immigration (European Economic Area) Regulations 2000. Her representative has referred to the Immigration (European Economic Area) Regulations 2006. Those Regulations only came into force on 30 April 2006. As that was after the date of the decision under appeal, I cannot apply that legislation. See R(S) 16/52 and section 12(8)(b) of the Social Security Act 1998.
16.	As the claimant is Polish, the 2000 Regulations have to be read subject to the Accession (Immigration and Worker Registration) Regulations 2004. 
Right to reside as a worker
17.	Regulation 14(1) of the 2000 Regulations provides that a ‘qualified person’ has the right to reside in the United Kingdom. ‘Qualified person’ is defined in regulation 5 of those Regulations and includes ‘a worker’. The claimant has worked in the United Kingdom. However, regulation 2 of the 2004 Regulations provides that the claimant is an ‘Accession State worker requiring registration’ if she has not worked for an uninterrupted period of 12 months. The claimant has not done that. As a result, regulation 5 of those Regulations provides that the work done by the claimant will only be taken into account in determining whether she is ‘a worker’ if it was done for an ‘authorised employer’. An ‘authorised employer’ is one who is authorised and for whom the claimant had a valid registration certification. I do not know if the claimant’s employers were authorised, but she did not have a certificate. Accordingly, the work she did is disregarded in deciding whether she was a worker. She does not, therefore, have a right to reside as a worker. 
Right to reside as a student
18.	I have considered whether the claimant had a right to reside as a student, assuming she became a student before 29 March 2006. A student is a ‘qualified person’ for regulation 5 of the 2000 Regulations. However, the claimant is only a student for this purpose if she has sufficient resources to avoid becoming a burden on the social assistance system and is covered by comprehensive sickness insurance. It is obvious that the claimant does not have sufficient resources to avoid claiming income support and it seems that the duration of any award is likely to be such that she could properly be described as a burden on the social assistance system. She does not, therefore, have a right to reside as a student.
Right to reside as Victoria’s mother
19.	This argument is constructed like this. Mr A was a student on a vocational course. As such he had the right to reside in the United Kingdom. Article 1 of Council Directive 93/96/EEC on the right of residence for students, extends the right to reside to his ‘dependent children’. Victoria was his dependent child. In Baumbast and R v Secretary of State for the Home Department[2002] ECR I-7091, the European Court of Justice decided that the dependent child of a worker had an independent right to education and that her primary carer had the right to reside to ensure that the child could claim that right. By parity of reasoning, the claimant as primary carer for Victoria has the right to reside to make Victoria’s right to reside effective. 
20.	A student is a ‘qualifying person’ for the 2000 Regulations and has the right to reside in the United Kingdom. However, ‘student’ for that purpose is defined in regulation 3(1)(g). There are three elements to the definition, which derive from Article 1 of the Directive.
•	The person must be enrolled at a recognised educational establishment. I do not know where Mr A is studying. And the person must be enrolled in order to follow a vocational training course. Mr A is studying International Business Studies. 
•	The person must have sufficient resources to avoid becoming a burden on the social assistance system. There is evidence that this is so for Mr A. However, there is an issue whether the resources must also be sufficient to prevent any dependent child becoming a burden on the system. I deal with that issue below.
•	The person must be covered by sickness insurance for all risks. There is no evidence of this. 
21.	The European Court of Justice has discussed the meaning of ‘dependent’ in different contexts. 
22.	The Secretary of State has referred me to the case of Centre Public D’Aide Sociale de Courcelles v Lebon [1987] ECR 2811. There the Court considered what ‘dependent’ meant in Regulation 1612/68:
‘22.	Article 10(1) and (2) of Regulation No 1612/68 must be interpreted as meaning that the status of dependent member of a worker’s family is the result of a factual situation. The person having that status is a member of the family who is supported by the worker and there is no need to determine the reasons for recourse to the worker’s support or to raise the question whether the person concerned is able to support himself by taking up paid employment.’
I read that as saying that the test for dependence is whether support is actually being provided and that there is no need to consider whether the support was necessary. 
23.	The Secretary of State has relied on Lebon for the proposition that dependence ‘is a broad question of fact and lack of financial dependency is not conclusive.’ I do not accept that the passage I have quoted supports that submission. The European Court of Justice said nothing about whether dependence was a purely financial matter. It was there concerned with the issue whether support was necessary, not with the nature of the support. 
24.	In Chen v Secretary of State for the Home Department [2005] QB 325, the Court considered what ‘dependent’ meant in Directive 90/364. It cited Lebon as authority for this proposition:
’43.	According to the case law of the court, the status of “dependent” member of the family of a holder of a right of residence is the result of a factual situation characterised by the fact that material support for the family member is provided by the holder of the right of residence …’
The context of that passage is the argument that the Chinese mother of a young girl with Irish nationality was her dependent relative in the ascending line. That is not the position here, but I notice that the Court referred to material support. Support may, of course, be material without being wholly financial.
25.	Finally, in Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091, the Court referred to ‘dependent’ in Regulation 1612/68:
‘62.	… Article 10 of that Regulation does not require that the member of the family in question must live permanently with the worker …’
That leaves open the question whether it is possible to be dependent on someone without living with them at least for part of the time. 
26.	As far as domestic authorities are concerned, dependence was discussed in the context of the Immigration Rules in R v Immigration Appeal Tribunal, ex parte Bastiampillai [1983] 2 All ER 844 at 851. Glidewell J said that the rules were primarily concerned with financial dependence, but that emotional dependence, exceeding the normal love and affection of a united family, might be significant in a borderline case. Those remarks were, of course, made in a different context from European law. 
27.	The context with which I am concerned is set by Articles 17 and 18 of the EC Treaty and Directive 93/96. Victoria is a citizen of the European Union under Article 17 and, as such, has the right to ‘reside freely with the territory of the Member States’ under Article 18. However, that right is ‘subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.’ Directive 93/96 is one of those measures. The Preamble to the Directive shows that: (i) it is concerned with the free movement of individuals and equal access to vocational training; (ii) it protects Member States from unreasonable burdens on their public finances; and (iii) it recognises that the right of residence can only be genuinely exercised if it includes spouses and dependent children. I draw two conclusions from that context. 
28.	First, I accept the Secretary of State’s argument that the right to reside only applies to dependent children for whom there are sufficient resources to avoid becoming a burden on the social assistance system. Article 1 of the Directive does not make that clear. However, Article 4 provides:
‘The right of residence shall remain for as long as beneficiaries of that right fulfil the conditions laid down in Article 1.’
‘Beneficiaries’ must cover the student as well as any spouse or dependent children and sufficient resources is one of the conditions laid down in Article 1. That conclusion is consistent with the purpose of the Directive as shown by the Preamble. The resources, of course, need not be the child’s own. See Chen at paragraph 30. 
29.	The claim for income support shows that Victoria does not have access to sufficient funds to avoid claiming from the social assistance system. But would she become a ‘burden’ on the system? European legislation has to be implemented in a way that is proportionate. A single claim for a small amount for a short period might not be a burden. Depriving Victoria of the right of residence in such circumstances might not be a proportionate implementation of the Directive. However, given the circumstances of Victoria and her mother, it is likely that she will require public financial support for sufficient time and in sufficient amount to be a burden. Accordingly, she does not have a right to reside under the Directive. It follows that the claimant does not have a right to reside either.
30.	Second, the right to reside for spouses and dependent children is protective of the student’s right of free movement. That context is different from Regulation 1612/68. There the Preamble refers to the integration of the worker’s family into the host country. That has affected the interpretation of that Directive. See Baumbast and R at paragraph 50. Directive 93/96 refers only to the effective exercise of the right of free movement to access vocational training. There is no mention of integration into the host country. That is easily explained by the fact that, on the whole, students are more likely to have short-term residence than workers. In Directive 93/96, the context is not to allow the whole family to become part of the host country. Instead, it is to prevent the prospective student from being deterred from moving to another country. Often, of course, each of those will be the obverse of the other. However, the emphasis chosen for each piece of legislation is relevant in showing its purpose. That suggests that dependence must be understood in this context. It identifies the type of relationship of responsibility which a person who was considering moving to another country for vocational training would not wish to abandon and would be right not to wish to do so. 
31.	Mr A’s responsibility for Victoria was limited. As at 29 March 2006, he was only living with the claimant for short periods in unsuccessful attempts at reconciliation. He made irregular financial contributions towards her maintenance which averaged only £10 a week. Sometimes it would be more, but sometimes it would also be less. He also had contact with her twice a week. I do not consider that that degree of responsibility would be sufficient to act as a legitimate deterrence on the exercise of free movement in pursuit of vocational training. 
32.	I am not saying that Mr A is not deeply attached to Victoria. Nor am I denying that there are emotional reasons why he would not wish to be separated from her. All I am saying is that European law does not take those matters into account in this case. That law is concerned with issues of support that make it appropriate to allow the link between parent and child to be maintained when moving between Member States. That support is not present in this case. 
33.	Even if Victoria satisfied the sufficient resources condition, she would still not have a right to reside under the Directive. It follows that the claimant would not have a right to reside either.
34.	As the claimant’s case fails at the stage of showing that Victoria is Mr A’s dependent child, it is unnecessary to consider whether the reasoning in Baumbast applies to students and to dependent children who are not yet in education. I will only say that, for a child who is under school age, Chen seems as much in point as Baumbast, perhaps more so. 
Disposal
35.	I allow the appeal, set aside the tribunal’s decision and substitute the decision that the tribunal should have given, which is to confirm the decision of the Secretary of State terminating payment of the claimant’s income support.

Signed on original
on 20 September 2007	Edward Jacobs
Commissioner