DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under section 14(8)(a)(i) of the Social Security Act 1998:
I SET ASIDE the decision of the Fox Court appeal tribunal, held on 31 January 2007 under reference 242/06/04282, because it is erroneous in point of law.
I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.
My DECISION is that, on her claim made on 20 June 2006 and refused on 28 August 2006, the claimant was a person from abroad whose applicable amount was nil and who was, therefore, not entitled to any payment of income support.

REASONS
2.	This is another case in which a claimant has claimed income support in circumstances in which a claim for a jobseeker's allowance would have been more appropriate. It is said that this was done on advice. That may entitle the claimant to some form of compensation, but it cannot affect the way that the relevant legislation is applied.
History and background
3.	The claimant is French. She came to the United Kingdom on 2 September 2005, accompanied by her child. In November 2005, she obtained work for about 16 hours a week at weekends as an assistant handling internet sales, but this was only temporary and came to an end on 31 May 2006. On 20 June 2006, she made a claim for income support. She told the tribunal that she was looking for part-time work to fit in with caring for her child, who was too young to go to school. The documents relating to the claim have not been produced by the Department. The Secretary of State decided that the claimant did not have a right to reside and, as a result, had an applicable amount of nil. The result was that she was not entitled to income support.
4.	The claimant exercised her right to appeal to an appeal tribunal. The tribunal allowed her appeal. It found that she was no longer a worker, but that she had retained her status as a worker because her statement that she was looking for work amounted to registration as conceded by the Secretary of State in CIS/3315/2005. A district chairman gave the Secretary of State leave to appeal to a Commissioner. The claimant has not participated in these proceedings, although she was advised by a legal officer to obtain advice and assistance. 
Domestic benefit legislation
5.	Income support was established by the Social Security Act 1986. The relevant provisions have been consolidated by the Social Security Contributions and Benefits Act 1992. 
6.	Section 124(1) of the 1992 Act provides:
‘(1)	A person in Great Britain is entitled to income support if-
…
(b)	he has no income or his income does not exceed the applicable amount.’
7.	Section 135 provides: 
‘(1)	The applicable amount, in relation to any income-related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit.
(2)	The power to prescribe applicable amounts conferred by subsection (1) above includes power to prescribe nil as an applicable amount.’
8.	The Income Support (General) Regulations 1987 are made, in part, under that authority. Paragraph 17 of Schedule 7 to those Regulations prescribes that the applicable amount for a ‘person from abroad’ is nil. 
9.	‘Person from abroad’ is defined by regulation 21AA. This has been the governing provision since 30 April 2006. The relevant provisions of the current version provide:
‘Special cases: supplemental – persons from abroad
21AA.—(1) “Person from abroad” means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
(2)	No claimant shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3).
(3)	A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following—
	(a)	regulation 13 of the Immigration (European Economic Area) Regulations 2006;
	(b)	regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the claimant is—
		(i)	a jobseeker for the purpose of the definition of "qualified person" in regulation 6(1) of those Regulations, or
		(ii)	a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker;
	(c)	Article 6 of Council Directive No. 2004/38/EC; or
	(d)	Article 39 of the Treaty establishing the European Community (in a case where the claimant is a person seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland).
(4)	A claimant is not a person from abroad if he is—
(a)	a worker for the purposes of Council Directive No. 2004/38/EC;
…
(c)	a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive; 
…’
Applying regulation 21AA
10.	The place to start is with regulation 21AA(4). Two provisions need to be considered.
Paragraph (4)(a)
11.	First, was the claimant a worker under subparagraph (a)? She had worked, but she was no longer working at the time of her claim. Directive 2004/38 distinguishes between a worker and a person who retains the status of a worker. In that context, a worker is a person who is actually working. As the claimant was no longer working, she was not a worker. 
Paragraph (4)(c)
12.	Second, had the claimant retained worker status under subparagraph (c)? That refers to paragraph 7(3) of the Directive:
‘(3)	For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:
(a)	he/she is temporarily unable to work as a result of an illness or accident;
(b)	he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office; 
(c)	he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months; 
(d)	he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.’
13.	The claimant was not unable to work, so Article 7(3)(a) did not apply. Nor had she embarked on vocational training, so Article 7(3)(d) did not apply. She was looking for work, so Article 7(3)(b) and (c) have to be considered. For both, it is a condition that the claimant must be ‘registered as a job-seeker with the relevant employment office.’ I have to decide whether what the claimant did was sufficient to register as a jobseeker. 
14.	The Directive does not define what registration involves. No doubt that was left to individual Member States, each of whom probably has different arrangements. 
15.	The tribunal found that the completion of the standard right to reside questionnaire in association with her claim for income support amounted to registration. It relied on the Secretary of State’s concession before Mr Commissioner Rowland in CIS/3315/2005. That concession was made in the context of the Immigration (European Economic Area) Regulations 2000. Mr Rowland pointed out that persons who were entitled to income support were not precluded from seeking work and that a claimant could not register as available for work unless there was a procedure for this to be done. It was against that background that counsel for the Secretary of State made the concession (paragraph 12 of the decision). 
16.	I asked whether the Secretary of State would repeat that concession in the context of Directive 2004/38 and the Immigration (European Economic Area) Regulations 2006 and the answer was: no. 
17.	The reason given by the Secretary of State’s representative is this:
‘4.	However in order to retain worker status under Article 7(3) whilst unemployed the claimant must register as a job-seeker with the relevant employment office. There is no provision or mechanism in place for this to be done by claiming income support. This reflects the policy of the Secretary of State under the current legislation and no concession is made that a person can register as a job-seeker by claiming income support and declaring that they are a workseeker.’  
The representative then cites and relies on my decision in CIS/4307/2007.
18.	This reasoning is not entirely satisfactory. For a start, the exclusion from entitlement to income support for those seeking work appears in regulation 21AA(3). However, paragraph (3) limits paragraph (2). And paragraph (2) does not apply if paragraph (4) is satisfied. Consequently, if the claimant comes within regulation 21AA(4)(c), the exclusion in paragraph (3) never comes into play. It only applies if the claimant does not come within paragraph (4), but does have a right to reside within paragraph (2). The logic of the structure of the regulation does not assist the Secretary of State’s argument. 
19.	My decision in CIS/4307/2007 does not help the Secretary of State either, because when I wrote that decision I had not appreciated the significance of the structure of regulation 21AA.
20.	However, the fact remains that the Secretary of State has not provided a means for a claimant for income support to register as available for work in the same way that a claimant for a jobseeker's allowance is allowed, and required, to register. In the absence of a concession, I have to decide whether what the claimant is allowed to do when claiming income support amounts to registration for the purpose of Article 7(3) of the Directive. 
21.	I am not going to attempt to define what the Directive has not. It is sufficient for me to decide whether what the claimant did in this case amounted to registration. What she did was to provide information as a matter of fact in connection with a claim for a benefit that is not particularly or primarily designed for those seeking employment. The document in question was not used, or designed to be used, for any purpose other than applying regulation 21AA. Completing the document was not part of a process of finding work for the claimant, helping her find work for herself or helping her improve her chances of finding work. Nor was it a document that was held for any purpose in connection with any of those activities. In those circumstances, she was not registered for the purposes of Article 7(3) of the Directive. 
22.	Accordingly, regulation 21AA(4) did not apply. Any other basis on which she may have a right to reside is excluded from income support by regulation 21AA(3)((b)(i). If she is entitled to a benefit, it is a jobseeker's allowance.
23.	This does not produce any unfairness for those who are looking for work. They are entitled to claim a jobseeker's allowance and, if they satisfy the conditions, they will be awarded that benefit. That is what the claimant should have done in this case. If she claimed income support on the basis of wrong advice from the staff of the JobCentre Plus, that produces an unfairness. But the remedy for that unfairness lies in the compensation scheme, not in the interpretation of the Directive. 
Disposal
24.	I allow the appeal, set aside the tribunal’s decision and give the decision that it should have given on the evidence before it. The claimant was not entitled to income support.

Signed on original
on 27 May 2008	Edward Jacobs
Commissioner