CIS/3216/2006
CIS/4345/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	The Secretary of State’s appeals are unsuccessful.  I set aside the decisions of the tribunals but I substitute decisions to the same practical effect.  The claimants had rights of residence in the United Kingdom and were habitually resident in the United Kingdom from 13 April 2005 (in CIS/3216/2006) and 7 October 2005 (in CIS/4345/2006), respectively.

REASONS

2.	I held an oral hearing of these appeals.  The Secretary of State was represented by Ms Marie Demetriou of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions.  The claimants were represented by Mr Martin Williams of the London Advice Services Alliance.  A third case (CIS/366/2007) was heard at the same time.

3.	In CIS/3216/2006, the claimant is a Danish citizen.  She came to the United Kingdom in March 2004 and then worked from 1 August 2004 to 8 April 2005, before claiming income support on 13 April 2005 as a lone parent with four children.  Although she had claimed income support, she stated she was looking for work.  She was refused income support on the ground that she had no right to reside in the United Kingdom and therefore could not be treated as habitually resident in the United Kingdom (see regulation 21(3G) of the Income Support (General Regulations 1987 (S.I. 1987/1968 as then in force).  She appealed. and the Fox Court appeal tribunal allowed her appeal on the ground that she was actually habitually resident in the United Kingdom and, in summary, the requirement that she satisfy the condition of having a right of residence was discriminatory contrary to Article 3 of Council Regulation (EEC) 1408/71 and therefore of no effect.  The Secretary of State now appeals with the leave of a tribunal chairman.

4.	In CIS/4345/2006, the claimant is an Austrian citizen.  She came to the United Kingdom on 7 September 2005, with one dependant child and three older children.  She claimed income support from 20 September 2005 but stated that she was looking for work.  She too was refused income support on the ground that she had no right to reside in the United Kingdom and she too appealed.  The Sutton appeal tribunal allowed her appeal, with effect from 7 October 2005, finding that from that date she was actually habitually resident and, like the first tribunal, also finding that the requirement that a person have a right of residence was of no effect by virtue of Article 3 of Council Regulation (EEC) 1408/71.  The Secretary of State now appeals with the leave of a tribunal chairman.

5.	The first question that arises in these appeals is whether the requirement that a claimant have a right of residence in the United Kingdom (or the Channel Islands, the Isle of Man or the Republic of Ireland) is lawful.  In Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657; [2008] 1 W.L.R. 254 (also reported as R(IS) R(IS) 8/07), the Court of Appeal held it was lawful and, in particular that it did not involve unlawful discrimination on grounds of nationality contrary to Article 12 of the EC Treaty.  Ms Demetriou submitted that the same considerations applied in respect of Article 3 of Council Regulation (EEC) 1408/71.  At the time of the hearing I thought that to be incontrovertible and, in view of what I had said in CIS/3182/2005, Mr Williams did not seek to persuade me otherwise although he reserved his position should the cases go further.  However, it subsequently came to my attention that, in CPC/1072/2006, it was being argued that the reasoning in Abdirahman did not apply in relation to Article 3 of the Regulation.  To some extent I accepted that argument when I heard the appeal in that case, but I nonetheless found that the requirement that a claimant have a right of residence in a relevant territory was not unlawful.

6.	It follows that the tribunals erred in law in both cases and the question arises in each case whether the claimant did in fact have a relevant right of residence, the tribunals not having addressed the issue.  

7.	In each case, the Secretary of State originally found that the claimant did not have a right of residence because she was not a qualified person with a right of residence under regulation 14 of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) and she could not have a right of residence as a workseeker because she had claimed income support which was, the Secretary of State submitted, an “inactive” benefit.  In the light of CH/3314/2005, Ms Demetriou resiled from that submission, recognising that being a workseeker is not incompatible with receipt of income support as a single parent.

8.	The cases were originally listed for hearing together because it appeared that there might be an issue as to the effect of the requirement in regulation 5(2) of the 2000 Regulations that involuntary unemployment be “duly recorded by the relevant employment office” but Ms Demetriou did not take any point under regulation 5(2) against the claimants.  I consider she was right not to do so.  Regulation 5(2) applies only where a person has been a worker and it is quite clear from Regina v Secretary of State for the Home Department, ex parte Antonissen (Case C-292/89) [1991] E.C.R. I-745 that a person may have a right of residence as a workseeker even if he or she has never been a worker.  More importantly, because it is not a specific condition of entitlement to income support that a person be involuntarily unemployed, the Secretary of State has not set up any system for confirming that claimants of income support are involuntarily unemployed.  I suspect the need to do so when it became important whether or not a person had a right of residence was overlooked because it was not envisaged that a workseeker might claim income support rather than jobseeker’s allowance.  Since 30 April 2006, the problem has been resolved by requiring those who claim to have a right of residence by virtue of being a workseeker to claim jobseeker’s allowance rather than income support.  In any event, Ms Demetriou accepted that the question whether each of these claimants had a right of residence in the United Kingdom turned on whether she was seeking work in the United Kingdom.  The tribunals did not address the question and so it is necessary for me to consider whether I can make the necessary findings or whether the issue should be referred in each case to another tribunal.

9.	In the first case, CIS/3216/2006, the claimant had shown a willingness to work by doing so for eight months and when she claimed income support she stated on her form HRT2 that she had come to the United Kingdom to work.  When her claim for income support was refused and after she had lodged her appeal, she claimed jobseeker’s allowance, which was awarded from 12 November 2005. Ms Demetriou accepted that the only purpose in referring the case to another tribunal would be so that the claimant’s evidence could be tested and, given that the Secretary of State often is not represented and was not before the tribunal from which this appeal was brought, that may mean that it would be left to the tribunal to test the evidence.  I see no reason not to accept that the claimant was seeking work from April 2005 to November 2005 and a tribunal taking the same view on the papers would probably not feel it necessary to question the claimant in great detail. I therefore decline to refer the case to another tribunal and I find that the claimant did have a right of residence and, because she clearly was in fact habitually resident in the United Kingdom by the time she made her claim for benefit, she was entitled to income support subject to the other conditions of entitlement being satisfied.  

10.	In the second case, CIS/4345/2006, the evidence is less clear.  The claimant had not worked in the United Kingdom and, indeed, had not worked for some time before travelling to the United Kingdom.  On the other hand, she stated in her form HRT2 that one reason she had come to the United Kingdom was to find work, although it appears that the principal reason was because her 18 year-old twin daughters were intending to enrol at an English university.  It is true that on her “Right to Reside Stencil”, she ticked the box to say she was not a workseeker, but that may have been because she was claiming a benefit for which workseeking was not a specific condition.  It may be more important that the tribunal accepted that she intended to work.  However, it is noteworthy that there is no evidence of any jobseeking during the material period.  I agree with Ms Demetriou that intending to work and looking for work are not necessarily the same thing.  She had enrolled on a ESOL course to improve her prospects but that also is not the same as actually seeking work.  She still needed an interpreter when she attended the tribunal hearing on 8 May 2006, although by that time she had been awarded jobseeker’s allowance with effect from 6 April 2006 so it may be inferred that, certainly by the latter date, her English was not so poor that she had no prospects of employment.  The difficulty is the complete lack of evidence of jobseeking before 6 April 2006.

11.	However, the claimant was never asked whether she was actually seeking work before 6 April 2006 because neither the Secretary of State nor the tribunal thought that it mattered.  I would therefore have referred this case to another tribunal were it not for the fact that it appears that the claimant has already been paid the income support due to her in consequence of the tribunal’s decision.  Ms Demetriou said that the Secretary of State was more interested in the point of law, which has been determined in his favour, than any question of fact and, of course, there could be no question of the benefit paid to the claimant being recovered whatever decision was now made about her entitlement.  In those circumstances, it will be simplest for everyone if I find the claimant to have had a right of residence as a workseeker.  

12.	Finally, Mr Williams argued that, in the light of R(IS) 1/06, the tribunal erred in finding that the claimant was not entitled to income support until 7 October 2005 on the ground that he was not habitually resident because, he submitted, it was clear from Swaddling v Adjudication Officer (Case C-90/97) [1999] E.C.R. I-1075 (reported also as R(IS) 6/99) that an appreciable period of residence cannot be determinative of the question whether a person is habitually resident for the purposes of EC law.  However, Swaddling was a rather different case from the present one (being concerned with a returning British citizen) and Mr Williams’ submission pays insufficient regard to the decision of the European Court of Justice in Collins v Secretary of State for Work and Pensions (Case C-138/02) [2004] E.C.R. I-2703 (also reported as RJSA) 3/06), which was considered in R(IS) 1/06 itself, and, perhaps more importantly, the decision of the Court of Appeal in Collins (reported immediately after the decision of the European Court of Justice as part of R(JSA) 3/06), which was decided shortly after R(IS) 1/06.  It is noteworthy that leading counsel appearing for Mr Collins in the Court of Appeal accepted that having a “short, fixed period” would not contravene Community law (see paragraph [81] of the judgment of Parker LJ) and the Court expressly considered the implications of Swaddling in that context (see paragraphs [82] and [83] of the judgment of Parker LJ, with whom Brooke and Kay LJJ agreed, and see also paragraphs [86] to [88]).  Whatever may be the position against other factual backgrounds, the finding in the present case that the claimant had become habitually resident in the United Kingdom after a month seems to me to have been very generous to her, given her limited previous connection with the United Kingdom. I do not accept Mr Williams’ submission that the finding was erroneous in point of law as being too favourable to the Secretary of State and it has not been challenged by the Secretary of State on the ground that it is erroneous in point of law as being too favourable to the claimant.

13.	The Secretary of State’s appeals in both cases are ultimately unsuccessful, although he succeeds on the point of law that was of importance to him.  What was, in effect, a cross-appeal in the second case is also unsuccessful.

	(signed on the original)	MARK ROWLAND
		Commissioner
		22 August 2008