CIS/4010/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the Secretary of State’s appeal.  I set aside the decision of the Manchester appeal tribunal dated 21 July 2006 and I decide that the claimant was not entitled to income support from 12 January 2006.

REASONS

2.	The claimant is a French citizen who came to the United Kingdom on 29 December 2004.  She looked for work and when her savings ran out she applied for, and was paid, income-based jobseeker’s allowance.  She then got a part-time job as a cleaner for just under a month in October and November 2005 but apparently left because she was pregnant.  She claimed jobseeker’s allowance again but was then told that she had to claim income support because she was in the late stages of pregnancy and was unable to fulfil her jobseeker’s agreement.  She claimed income support on 12 January 2006 but her claim was disallowed on 17 February 2006 on the ground that she had no right to reside in the United Kingdom and so could not be treated as being habitually resident in the United Kingdom (see regulation 21(3) and (3G) of the Income Support (General) Regulations 1987 (S.I. 1987/1967) as then in force).  She did not resist the suggestion that she was not able to look for work from 12 January 2006 and she plainly was not in fact looking for work after that date.  Although she described herself on one document as a workseeker, her other statements and the submissions made on her behalf show that she had temporarily ceased looking for work.  Her expected date of confinement was 14 March 2006 but her son was born on 1 March 2006.  She hoped to return to work when he was old enough to place with a childminder or in a nursery.

3.	Meanwhile, she appealed against the disallowance of her claim.  The tribunal allowed her appeal.  It found that the claimant had become a “worker” during her brief period of employment and had subsequently retained that status so that she retained a right of residence.  It stated that, “[u]nder United Kingdom law a woman is temporarily incapable of work for a period of 11 weeks prior to the expected date of confinement and up to 15 weeks thereafter.”  The Secretary of State now appeals with the leave of the legally qualified panel member who had constituted the tribunal.

4.	It is common ground that a worker within the meaning of the EC Treaty had a right of residence in the United Kingdom by virtue of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) and that a person did not cease to be a worker when temporarily incapable of work as a result of illness or accident (see regulation 5(2)(a)).  It is also common ground that the tribunal erred in stating that United Kingdom law provides that a pregnant woman is temporarily incapable of work for a period from 11 weeks prior to the expected date of confinement.  The tribunal seems to have confused the conditions for entitlement to maternity allowance and to income support based on pregnancy (which do not deem a person to be incapable of work although they enable a person to claim benefit instead of working) with the rather more limited deeming provision in regulation 14(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 (S.I. 1995/311), which provides that a pregnant woman not entitled to maternity allowance or statutory maternity pay shall be treated as incapable of work –

“… on any day in the period –
    (i)	beginning with the first day of the 6th week before the expected week of her confinement or the actual date of her confinement, whichever is earlier; and
    (ii)	ending on the 14th day after the actual date of her confinement …”

5.	It is also common ground that the claimant would have continued to have a right of residence from 12 January 2006 had she continued to look for work notwithstanding her claim for income support (see CH/3314/2005).  It is suggested that I should refer the case to another tribunal for further facts to be found.  However, I am quite satisfied that the claimant was not still looking for work.  That may have been because she had been wrongly advised that she need not do so in order to claim income support rather than jobseeker’s allowance but that is irrelevant.  The submissions made to the tribunal on her behalf were clearly to the effect that she was unable to work due to her pregnancy.  I will determine the appeal on that basis.

6.	The Secretary of State’s initial ground of appeal was that the claimant could not rely on regulation 5(2)(a) of the 2000 regulations for her right of residence because there was a gap between her leaving her employment and her becoming unable to work due to pregnancy.  That point is not now pursued, partly, so it would appear, because the Secretary of State accepts that the claimant may have been workseeking during the intervening period, and so I need not consider its merits.  The Secretary of State now takes the simpler point that pregnancy is not an illness or an accident so that being incapable of work due to pregnancy is not sufficient to bring a person within regulation 5(2)(a) of the 2000 Regulations.

7.	The claimant argues that she would have fallen within the scope of regulation 14(b) of the 1995 Regulations from 18 January 2006 and that therefore not to include her within the scope of regulation 5(2)(a) of the 2000 Regulations would amount to gender discrimination contrary to Article 14 of the European Convention on Human Rights, read with Article 1 of Protocol 1.  Reference is also made to the duty under section 3 of the Human Rights Act 1998 to interpret United Kingdom legislation consistently with the Convention so far as possible.

8.	I do not accept these arguments raised by the claimant, even assuming that she has correctly construed regulation 14(b)(i) (in which it is not clear whether “the actual date of confinement” is an alternative to “the expected week of her confinement” or an alternative to “the first day of the 6th week before the expected week of her confinement”) and even assuming that there is some inequality that requires justification.  Pregnancy is not per se an illness.  Separate provision is made for it in both domestic legislation and EC legislation.  Regulation 5(2)(a) of the 2000 regulations was clearly based upon, and must be construed consistently with, Article 7(1) of Directive 68/360/EEC and that provision would have included specific reference to pregnant women had it been intended to include them within its scope.  EC legislation is generally to be construed consistently with the Convention but I do not accept that Article 14 of the Convention requires that, in all circumstances, women unable to work due to pregnancy are to be treated in the same way as men and women who are incapable of work as a result of illness or accident.  Social assistance is primarily the responsibility of the Member State of which a claimant is a national and the aim of the directive is merely the removal of obstacles to the freedom of movement of citizens of the European Union engaged in economic activity.  It is true that a person who is in the later stages of pregnancy and a person who is ill may both be temporarily incapable of engaging in economic activity but one material difference in that context is that the later stages of pregnancy can be anticipated in a way that temporary illness and temporary incapacity due to an accident generally cannot.  It is not unreasonable to expect a person to avoid reliance on the social assistance scheme of a Member State of which she is not a citizen when she can anticipate her need for assistance.  The fact that a national social assistance system makes provision for pregnant women does not mean that all citizens of the European Union should have access to it.  The claimant would have been able to rely on regulation 14 of the 1995 Regulations had she paid sufficient contributions to be eligible for incapacity benefit or, alternatively, she would have been entitled to maternity allowance had she worked to a sufficient extent.  

9.	The claimant argues that it is enough that she had been living in the United Kingdom for just over a year.  She refers to CIS/3182/2005 and relies on Articles 12 and 18 of the EC Treaty.  I do not agree that a years’ residence is long enough.  When considering Article 18, regard must be had to the standard set by Directive 2004/38/EC under which a right of permanent residence giving access to social assistance to people who are not economically active is not generally acquired until after five years’ residence, although there are specified exceptions, and, in the light of Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657, it is clear that Article 12 cannot be relied upon independently.

10.	Finally, the claimant argues that I should refer the case to another tribunal for findings of fact to be made as to whether she was looking for work after her son was born.  However, by virtue of section 12(8)(b) of the Social Security Act 1998, any change in her circumstances after the date of the Secretary of State’s decision, which was before the birth of her son, cannot be taken into account.  It was necessary for her to make a new claim.

11.	It is therefore apparent that the claimant was not entitled to income support by virtue of the claim she made on 12 January 2006.

	(signed on the original)	MARK ROWLAND
		Commissioner
		9 October 2007