DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under section 14(8)(a)(ii) of the Social Security Act 1998:
I SET ASIDE the decision of the Bristol appeal tribunal, held on 28 January 2008 under reference 186/07/02683, because it is erroneous in point of law.
I make findings of fact and give the decision appropriate in the light of them.
I FIND as fact that the claimant had not legally resided in the United Kingdom for a continuous period of five years by the time her claim for income support was determined on 12 July 2007.
My DECISION is that the claimant was a person from abroad who therefore had an applicable amount of nil and was not entitled to income support.
 
REASONS
2.	This appeal is brought by the Secretary of State with the leave of a district chairman against the decision of his appeal tribunal that the claimant had a permanent right to reside in the United Kingdom. The claimant has commented to the effect that she is no longer interested in claiming income support.
A.	What are the facts?
3.	The claimant is Greek. She came to the United Kingdom in 2001. Since then, she has variously worked in different jobs, received jobseeker's allowance and been absent abroad. The Secretary of State has analysed the available evidence to show that the claimant had worked or received jobseeker's allowance in the United Kingdom for a period of 4 years and 7 months down to September 2007. It is not necessary to set out the periods; they are on page 197.
4.	The claimant claimed income support on 30 May 2007 but this was refused on 12 July 2007 on the ground that she did not have a right to reside relevant to income support. She exercised her right of appeal and the tribunal decided that she had a permanent right to reside.
5.	Before I set out the tribunal’s reasoning, I will explain why that conclusion was relevant to entitlement to income support.
B.	Why is a right of permanent residence relevant to a claim for income support?
6.	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. 
7.	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.’
8.	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.’
9.	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. 
10.	‘Person from abroad’ is defined by regulation 21AA. This has been the governing provision since 30 April 2006. In so far as relevant, it provides:
‘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—
…
(e)	a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive; …’
C.	What is permanent residence?
11.	This is governed by Article 16 of Directive 2004/38/EC:
‘1.	Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. …
2.	Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.
3.	Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absence of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting to another Member State or a third country. 
4.	Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.’
12.	This is implemented by regulation 15 of the Immigration (European Economic Area) Regulations 2006:
‘Permanent right of residence
15.-(1) The following persons shall acquire the right to reside in the United Kingdom permanently—
(a)	an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b)	a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;
(c)	a worker or self-employed person who has ceased activity;
(d)	the family member of a worker or self-employed person who has ceased activity;
(e)	a person who was the family member of a worker or self-employed person where—
(i)	the worker or self-employed person has died;
(ii)	the family member resided with him immediately before his death; and
(iii)	the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;
(f)	a person who—
(i)	has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and
(ii)	was, at the end of that period, a family member who has retained the right of residence.
(2)	Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.
(3)	But this regulation is subject to regulation 19(3)(b).’
D.	Why did the tribunal decide in the claimant’s favour?
13.	The tribunal decided that regulation 15 did not comply with the Directive. Under the Directive, the condition for acquiring a right of permanent residence is that the person has ‘resided legally’. Under regulation 15, it is that the person has ‘resided … in accordance with these Regulations’. Having decided that they were in conflict, the tribunal held that Article 16 was of direct effect and applied it rather than regulation 15. This led to the tribunal to this conclusion:
‘The tribunal considered that her residence commenced in October 2001; in the period prior to that she had not developed a sufficiently definite intention to stay to be deemed resident. She had resided legally in the United Kingdom for five years in October 2006 and she therefore acquired at that time a right of permanent residence.’
E.	How did the tribunal go wrong in law?
14.	I do not need to decide whether regulation 15 accurately implements the Directive. I would only point out that, as it is intended to achieve that end, it must be interpreted (if possible) to do so.
15.	It is sufficient for me to hold that the tribunal went wrong by including in the period of residence the time when the claimant was abroad. When that period is left out of account, her residence in the United Kingdom is less than five years at the date of the claim and of the decision refusing the claim. I now need to explain why periods out of the country must be disregarded. For convenience, I will use the terms of the Directive.
16.	Article 16(1) provides that the right of permanent residence arises after ‘a continuous period of five years’. That contains two elements: (i) residence for a period of five years; and (ii) continuity of residence within that period.
17.	If Article 16(1) stood on its own, any gaps in the residence would prevent a right of permanent residence arising. However, Article 16(3) allows for periods of absence. Provided that the claimant’s absences comply with the conditions in that paragraph, continuity of residence is preserved. That does not affect the period of residence that is required. Continuity and the period of five years are separate, albeit related, conditions for the right to arise. This interpretation accords with the wording of the paragraph. Any other interpretation would produce a surprising result. If periods of absence were included in the period of residence, it is conceivable that a person might acquire a right of permanent residence after being resident here for a period considerably shorter than five years. It may be an extreme and unrealistic example, but a person could spend one year studying abroad, spend the next two or three years on compulsory military service abroad and then spend half of each year abroad. A person in those circumstances would surely not ‘have chosen to settle long term in the host Member State’, to quote recital 17 to the Directive. 
18.	It may be that the tribunal considered that residence could survive a period of absence. That is true in one sense. A weekend break on the Continent would not interrupt the person’s residence. The reason is that the person’s status, on which the right to reside depends, is not affected by such absences. For example: a worker remains a worker while on holiday and retains the right to reside. The absences to which Article 16(3) refers are absences that do affect residence because the person no longer retains a status that confers the right to reside. 
F.	Disposal
19.	I allow the Secretary of State’s appeal, set aside the tribunal’s decision and substitute the decision that the tribunal should have given.

Signed on original
on 17 September 2008	Edward Jacobs
Commissioner