CIS/571/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Enfield appeal tribunal and refer the case to a differently constituted appeal tribunal for determination.  I direct the Secretary of State to make, within one month of this decision being issued to his representative, a further submission to the tribunal in respect of the termination of the claimant’s award of jobseeker’s allowance (see paragraph 5 below).

REASONS

2.	 The claimant is a Danish national who, at the material time, was a single parent with six dependant children.  She came to the United Kingdom on 30 August 2004.  Notwithstanding her family responsibilities, she obtained work almost immediately and remained in employment from 5 September 2004 until 15 February 2005.  She then claimed and was awarded jobseeker’s allowance but that award came to an end in November 2005 in circumstances that are unclear.  She claimed income support on 13 November 2005 but her claim was disallowed on 23 December 2005 on the ground that she had no right of residence in the United Kingdom and so could not be treated as habitually resident in the United Kingdom (see regulation 21(3) and (3G) of the Income Support (General) Regulations 1987 (S.I. 1987/1967).  She appealed but the tribunal dismissed her appeal and she now appeals against the tribunal’s decision with my leave and limited support from the Secretary of State.

3.	The tribunal found that the claimant was “not voluntarily unemployed” by which I think it meant “not involuntarily unemployed”.  It clearly had regulation 5(2)(b) of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) in mind, although it referred to regulation 5(2)(a), but it gave no reasons for its conclusion on the facts.  It had however referred to a claimant being required to “sign on” in order to fall within the scope of regulation 5(2)(b) and it seems probable that it was the fact that the claimant was claiming income support rather than jobseeker’s allowance that caused the tribunal to dismiss the claimant’s appeal.  For reasons explained in CH/3314/2005, such an approach would not have been correct.  The claimant had appealed on the ground that she was a workseeker and if the tribunal did not accept the fact it should have explained why.  I therefore set aside the tribunal’s decision.

4.	The Secretary of State supports the appeal to that extent but then submits that I should find as a fact that the claimant had no reasonable prospects of obtaining employment   He points out that the documentary evidence of workseeking provided by the claimant was limited and invites me to take the same approach to the facts as I took to the facts in CH/3314/2005.  However, that is to confuse two issues: whether the claimant is making reasonable efforts to find work and whether she has reasonable prospects of finding work.  They are obviously related because a person who is not making reasonable efforts to find work will not have reasonable prospects of finding work but the point in CH/3314/2005 was that the claimant had imposed such heavy restrictions on the types of work she was prepared to undertake that that by itself meant she had limited prospects whatever efforts she made to find work within those restrictions.  In the present case, however, there is no evidence that such severe restrictions were being imposed by the claimant and the fact that she had had work, albeit part-time, and had been awarded jobseeker’s allowance for a substantial period suggested otherwise.  In those circumstances, I am not prepared to decide this case on the papers and it should be considered by another tribunal at an oral hearing.

5.	When I granted leave to appeal I suggested that it was arguable that the claimant’s appeal to the tribunal should have been treated as an appeal against the termination of her award of jobseeker’s allowance.  It is unclear to me exactly what decision, if any, was issued to the claimant in order to terminate the award of jobseeker’s allowance.  The S
ecretary of State suggests that a computer record shows that a “change of circs” decision was issued.  I agree with the Secretary of State that the terms of the claimant’s letter of appeal suggest that she was told that she would have to attend a training course from 9am to 5pm five days a week and that she refused to do so and that that was why the award of jobseeker’s allowance was terminated.  Whether a proper decision was issued on the basis that she had refused to attend a course without good cause and telling her of her right to appeal or whether the claimant was simply told that she had to claim income support and the award of jobseeker’s allowance was terminated administratively and informally I am not sure.  The Secretary of State suggests that the case should be referred to him “to consider the possible appeal against the disallowance of Jobseekers Allowance”.  I agree, but consider that the Secretary of State should make a submission to the tribunal that is seised of the income support appeal.  If no proper decision terminating the award of jobseeker’s allowance was made, such a decision should be made now and the claimant will be able to appeal against it and ask the same tribunal to consider both cases.  If a decision was made, the Secretary of State will be able to tell the tribunal whether it is accepted that the income support appeal should be treated as having been made also against the jobseeker’s allowance decision and will be able to make submissions as to the correctness of that decision.  Ultimately, the scope of the appeal will be a matter for the tribunal who will no doubt be assisted by being provided with the terms in which any decision that was issued to the claimant was written, if that can be inferred from the computer record.

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