CIS/1837/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The Secretary of State’s appeal is allowed.  The decision of the Fox Court tribunal given on 13 February 2006 (the tribunal) is erroneous in point of law.  I substitute for the tribunal’s decision my own decision, which is that the claimant was not entitled to income support from 27 May 2005 because she was not a person with a right to reside in the United Kingdom.  

2.	Consideration of the Secretary of State’s appeal was delayed pending the decision of the Tribunal of Commissioners, and subsequently the Court of Appeal, in the Abdirahman case.  When directions were eventually issued, the Commissioners’ Office was unable to make contact with the claimant, and her representative was no longer acting.  The Secretary of State’s further submissions in this case lend a measure of support to the claimant’s appeal.  However, for reasons which appear below, I am unable to find that the claimant was a worker for the purpose of EU law.  This was the only basis on which she could have satisfied the conditions for entitlement to income support at the relevant time.

3.	The claimant entered the United Kingdom for the first time on 23 March 2004 together with her four young children.  She had separated from her husband some years earlier.  The claimant is a Danish national of Somalian origin who had lived in Denmark from 1992 until the day before her entry to the United Kingdom.  When she first entered the United Kingdom she is said to have stayed with two cousins.  In June 2005 she entered into a tenancy agreement for her own accommodation.  On 27 May 2005 she claimed income support.  She was interviewed to establish whether she had a right to reside.  This interview, conducted on 6 June 2005, showed that the claimant had not worked in the United Kingdom, but said that she hoped to support herself by “finding work as soon as possible”.  Though she said that she was not at that time paying any rent, I note that the tenancy agreement which starts at page 50 of the papers shows that she entered into a tenancy agreement on that same day accepting a rental liability in the sum of £1,213.33 per month.  The claimant was not questioned about her work history in Denmark, but the interview record contains the ambiguous comment “working child care”.  I suspect that what this means is that she was engaged while she was in Denmark in the care of her own children, as I notice the date of birth of the eldest child was 5 November 1993.  Certainly, no submission made on her behalf suggests that she was a worker while in Denmark.  Though this interview suggests her children were in school, the tribunal was told this was not so until much later, and that this was said to be because of homelessness casts doubt on the evidence concerning her accommodation arrangements.

4.	On 14 September 2005 the Secretary of State decided that the claimant was not entitled to income support because she did not have a right to reside in the United Kingdom.  She appealed against this decision, and the submission made on her behalf by a representative argued that the claimant satisfied the transitional protection provisions set out in the Social Security (Habitual Residence) Amendment Regulations 2004 in force from 1 May 2004 (SI 2004/1232).  Regulation 6 sets out transitional arrangements and savings:

	(1)	Paragraph (2) shall apply where a person –

			(a)	is entitled to a specified benefit in respect of a period which includes 30 April 2004;

			(b)	claims a specified benefit on or after 1 May 2004 and it is subsequently determined that he is entitled to that benefit in respect of a period which includes 30 April 2004; 

			(c)	claims a specified benefit on or after 1 May 2004 and it is subsequently determined that he is entitled to such benefit in respect of a period which is continuous with a period of entitlement to the same or another specified benefit which includes 30 April 2004

			(d)	…

	(2)	Where this paragraph applies –

			(a)	…

			(b)	regulation 21 of the Income Support Regulations shall continue to have effect as if regulation 3 had not been made

			(c)	…

			(d)	…

	(3)	The provision saved by paragraph (2) shall continue to have effect until the date on which entitlement to a specified benefit for the purposes of paragraph (1) ceases, and if there is more than one such specified benefit, until the last day on which such entitlement ceases.  

	(4)	In this regulation “specified benefit” means income support, housing benefit, council tax benefit, jobseeker’s allowance and State pension credit.

5.	The representative’s argument under the transitional provisions was based on a supposed claim to income support dated 23 March 2004.  That the claimant had made some claim to benefit is supported by the letter which appears at page 63 of the documents and is dated 6 April 2004.  It appears to have been issued in connection with a claim to income support.  The Secretary of State has not dealt with the question of whether there was a claim to income support, but for the purpose of this appeal I am prepared to accept that such a claim was made.  The representative does not suggest that an award was made, instead suggests that the claim was lost without being adjudicated.  I find that improbable, and I have little doubt that as the claim is said to have been made on the very day that the claimant entered the United Kingdom for the first time that it was refused because the claimant was not habitually resident.  The claimant can only benefit from the transitional protection if she was actually in receipt of a specified benefit as at 30 April 2004 and has remained in receipt thereafter.  Clearly the claimant did not satisfy that provision. 

6.	The alternative argument made on the claimant’s behalf was that: the Income Support (General) Regulations (the Regulations) do not define the “right to reside” and the term should be given its ordinary everyday meaning; that the right to reside test is incompatible with EU legislation which prohibits discrimination on grounds of nationality; and that the test in any event did not apply to the claimant as she was actually habitually resident and therefore did not need to be “treated as” habitually resident.

7.	Regulation 21 of the Regulations, as in force at the relevant time, provided in regulation 21(3) that:

	“Person from abroad” means a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is –

		(a)	a worker for the purposes of Council Regulation (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC …

		(b)	…

		(c)	…

		(d)	a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act and who is in the United Kingdom as a result of his deportation, expulsion or other removal by a compulsion of law from another country to the United Kingdom.

8.	The claimant was present and represented at the oral hearing of her appeal.  The Secretary of State was not represented.  Unfortunately, the tribunal did not take advantage of the opportunity to obtain evidence from the claimant as to whether or not she had worked in Denmark, no questions were asked about any work seeking activities since she arrived in the United Kingdom, and no findings were made concerning the 2004 benefit claims which had been argued.  The claimant did, however, correct one assertion made in the right to reside questionnaire, which had said that her children were all at primary school as at the date of that interview, which was 6 June 2005.  She told the tribunal that her children had not started school until “three months ago” and this was because she was in effect homeless.  I note this means that the children would not have started school until some time in November or early December 2005, which is after the date of the decision.  However, the tribunal allowed the claimant’s appeal.  It found that she was actually habitually resident in the United Kingdom at the date of her claim for income support.  This was based on the fact that the claimant had lived in the United Kingdom for 14 months by the time this claim was made.  Unfortunately, the tribunal reached its decision as to actual habitual residence by ignoring the question of whether the claimant had a right to reside.  The tribunal also reached the somewhat unusual finding that section 115 of the Immigration and Asylum Act 1999 provided that an EEA national could not be excluded from entitlement to income support.  The tribunal, however, rejected the argument that the claimant came within the transitional provisions. 

9.	Section 115 Immigration and Asylum Act 1999 falls within Part VI of that Act, which is entitled “support for asylum seekers”.  Section 115 deals with exclusion from benefits, and provides:

	(1)	No person is entitled to income based jobseeker’s allowance and the Jobseekers Act 1995           - …

			(e)	income support

			…

		under the Social Security Contributions and Benefits Act 1992 while he is a person to whom this section applies

	(2)	…

	(3)	This sections applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed.

	(4)	Regulations under subsection (3) may provide for a person to be treated for prescribed purposes only as not being a person to whom this section applies …

	(9)	“A person subject to immigration control” means a person who is not a national of an EEA State and who –

			(a)	requires leave to enter or remain in the United Kingdom but does not have it;

			(b)	has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds; 

			(c)	has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or 

			(d)	has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4.

While the tribunal chairman was right to identify that section 115(9) of the Immigration and Asylum Act 1999 does not apply to a person who is a national of an EEA State, section 115 does not provide that a national of an EEA State cannot be excluded from entitlement to income support.  Section 115 quite simply has no application to an EEA national, and accordingly, the claimant’s entitlement fell to be considered only under regulation 21(3) of the Regulations.

10.	Eliminating the double negatives leaves the effect of this provision clearer.  The only persons who can be treated as habitually resident are workers under the relevant directives of the EEC, refugees, those granted exceptional leave to enter by an immigration officer or to remain in the United Kingdom by the Secretary of State, or a person who is awaiting the outcome of an appeal against an immigration ruling.  The only one of these provisions relevant to the claimant is whether or not she is a worker under EU law.  This was not a point which was argued by the claimant’s representative, and in view of the decision of the Tribunal of Commissioners in CIS/3753/2005, confirmed by the Court of Appeal in Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657 I do not need to consider those other points further.  The tribunal was wrong to decide that the claimant’s right to reside could be determined without reference to the relevant regulations and to the relevant provisions of European Law.  Claimants who are EEA nationals can only satisfy the habitual residence test if they have a right to reside in terms of EU law.

11.	What is meant by “a worker” for the purposes of EU law is not defined in the EC Treaty nor any of the directives made under the Treaty.  In the case of Raulin v. Minister Van Onderwijs en Wetenschappen [1992] E.C.R. I – 1027 at paragraph 10, Case C – 357/89 the court said:

	“The essential character of an employment relationship is that for a certain period a person performs services for and under the direction of another person in return for which he receives remuneration.”

In this case there is no evidence that the claimant engaged in such activity when she was living in Denmark, and it was agreed that she had not undertaken paid work in the United Kingdom.  It has been accepted by the European Court of Justice that work which is genuine and effective, but falls short of covering all a worker’s needs, can still result in that person properly being considered part of the working population:  Nolte v. Landesversicherungsanstalt Hannover (Case C – 317/93) [1995] E.C.R. I – 4625, where the court said:

	“The fact that a worker’s earnings do not cover all his needs cannot prevent him from being a member of the working population.  It appears from the courts case law that the fact that his employment yields an income lower than the minimum required for subsistence (see Case 53/81 Levin v. Staatssecretaris van Justice [1982] E.C.R. 1035 … does not prevent the person in such employment from being regarded as a worker within the meaning of Article 48 …”

The Secretary of State considered that CH/3314/2005 / CIS/3315/2005 lent some support to the claimant.  However the claimant in that case in her right to reside interview identified herself as a work seeker (something which, before the current regulations came into force on 10 April 2006, was possible for an income support claimant) and  she had in fact worked for several months until her child care arrangements broke down.  In this case there is no evidence that the claimant has at any time, either in Denmark or the United Kingdom, undertaken or performed services in return for which she received or expected remuneration.  There was evidence that she had undertaken, on a voluntary basis, assistance with the teaching of Islamic heritage within a Somali community based organisation.  A letter to this effect, dated 29 November 2004 (see page 64 of the bundle) says that the claimant was involved in this work since March 2004, notwithstanding that she only arrived in the United Kingdom on 23 March 2004.  Although the tribunal’s statement of reasons says that the claimant worked at this community centre for at least eight months, I think that must be an inference from the date of the letter, as there was no mention of this in the record of proceedings.  However, it was not work.  It was not an activity for which payment was made.  The only conclusion possible from this evidence is that the claimant was not a worker.  Nor was evidence of work-seeking provided.  Indeed, given the claimant’s homeless status, her responsibilities for the care of four young children, her lack of English and of previous work activity, this would have been a daunting task.

12.	For the reasons set out above, the Secretary of State’s appeal is allowed.    

					(Signed on the Original)	Mrs A Ramsay
									Deputy Commissioner
                                                                                                            4 September 2008