[2007] UKSSCSC CIS 2431 2006 (29 November 2007)

CIS/2431/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the Secretary of State’s appeal.  I set aside the decision of the Fox Court appeal tribunal dated 23 January 2006 and I refer the case to a differently constituted appeal tribunal for determination.  I draw the Secretary of State’s attention to paragraph 4 below.

REASONS

2.	The claimant is a Dutch national who came to the United Kingdom on 11 March 2004 to join her husband, who is also a Dutch nationa, and to settle in the United Kingdom.  He had worked in the United Kingdom from 1 July 2003 to 30 November 2003 and had then been in receipt of income support on the ground of incapacity for work.  It appears that the claimant was receiving carer’s allowance in respect of him so it appears that he was severely disabled.  The claimant separated from him on 10 July 2005 and claimed income support as a single parent from 21 July 2005.  She was not looking for work at that time, not being well herself and having four children.  Her claim was disallowed on the ground that she had no right to reside in the United Kingdom and so could not be regarded as habitually resident, with the consequence that she was a “person from abroad” with an applicable amount of nil (see regulation 21 of the Income Support (General) Regulations 1987 (S.I. 1987/1967) as then in force).  She appealed and her appeal was allowed on the ground that she was habitually resident in the United Kingdom.  The tribunal took the view that the “right to reside requirement can only be applied to A8 states” and that the claimant had a right to reside in the United Kingdom by virtue of Article 18 of the EC Treaty.

3.	The Secretary of State now appeals with my leave.  In the light of Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657 (reported as R(IS) 8/07), the tribunal’s decision is plainly erroneous in point of law.  However, in response to the observations I made when granting leave, the Secretary of State submits –

“As the spouse of an EEA national, [the claimant] is a family member in accordance with regulation 6 of the Immigration (EEA) Regulations 2000.  As a separated spouse, she is still a spouse (Case 267/83 Diatta) until divorce.  …  [The claimant’s husband] has to be an EEA national exercising a Treaty right for [the claimant] to have a right to reside.  For this reason it is [her husband’s] status as exercising a Treaty right that falls for consideration.”

The Secretary of State then submits that it is necessary to ascertain whether the claimant’s husband’s incapacity for work was temporary in order to discover whether he had a right of residence, because a worker who ceases work only because “he is temporarily incapable of work as a result of illness or accident” retains a right of residence under, at that time, regulation 5(2)(a) of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326).  On the admittedly limited evidence before me, I have some doubt as to whether the claimant’s husband’s incapacity was only temporary but that may not necessarily be the only ground upon which the claimant’s husband might have had a right of residence.  In any event, I accept the Secretary of State’s submission and agree that this is a case that should be referred to another tribunal for further findings of fact to be made.

4.	As the relevant questions were not asked when the claimant first made her claim, I suggest that the Secretary of State carries out further investigations himself and makes a fresh submission to the tribunal before the hearing, if the appeal does not lapse due to a revision of the decision under appeal.  He should indicate to the clerk to the tribunal when he expects to be able to make a submission.

5.	I understand that the claimant has herself worked since the date of the Secretary of State’s decision in this case but then became involuntarily unemployed.  It is possible that she has therefore acquired a right of residence by virtue of her own status as a worker.  The tribunal will not be able to take account of any changes of circumstances since 20 September 2005, but the claimant may have been able to make a new claim for benefit and may have done so.

	(signed on the original)	MARK ROWLAND
		Commissioner
		29 November 2007