DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under section 14(8)(b) of the Social Security Act 1998:
I SET ASIDE the decision of the Fox Court appeal tribunal, held on 2 July 2007 under reference 242/07/04876, because it is erroneous in point of law.
I REMIT the case to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration. 
In particular, the appeal tribunal must investigate and determine whether the claimant was a person from abroad within the meaning of regulation 21AA of the Income Support (General) Regulations 1987 between the date when she claimed income support and the date when the Secretary of State refused her claim. 

REASONS
History and background
2.	The claimant is of Somali origin and Dutch nationality. She has three children, born in 1984, 1986 and 1992. The elder two children moved to the United Kingdom in 2004. The claimant followed with her youngest child on 12 March 2005. She quickly found work as an office cleaner, working for two hours a day five days a week. That work lasted from 29 March 2005 to 16 June 2005, when the office closed. She then claimed and was awarded a jobseeker's allowance. In September 2005, her youngest daughter enrolled at her local school. Jobseeker's allowance remained in payment until 8 January 2007. At that time, she became ill and claimed income support on 12 January 2007. On 5 March 2007, the Secretary of State refused the claim on the ground that the claimant was a person from abroad whose applicable amount was nil.  
3.	The claimant exercised her right of appeal and the tribunal decided that she was not a person from abroad. I gave the Secretary of State leave to appeal. I have received observations from the Secretary of State and from Camden Community Law Centre on behalf of the claimant.
Income support legislation
4.	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. 
5.	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.’
6.	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.’
7.	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. 
8.	‘Person from abroad’ is defined by regulation 21AA. This has been the governing provision since 30 April 2006. The current version 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—
(a)	a worker for the purposes of Council Directive No. 2004/38/EC;
(b)	a self-employed person for the purposes of that Directive;
(c)	a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive; 
 (d)	a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive;
(e)	a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive;
(f)	a person who is treated as a worker for the purpose of the definition of "qualified person" in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to—
	(i)	regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 (application of the 2006 Regulations in relation to a national of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia or the Slovak Republic who is an "accession State worker requiring registration"), or
	(ii)	regulation 6 of the Accession (Immigration and Worker Authorisation) Regulations 2006 (right of residence of a Bulgarian or Romanian who is an "accession State national subject to worker authorisation");
(g)	a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;
(h)	a person who has exceptional leave to enter or remain in the United Kingdom granted outside the rules made under section 3(2) of the Immigration Act 1971;
(hh)	a person who has humanitarian protection granted under those rules;
(i)	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 compulsion of law from another country to the United Kingdom; or
(j)	a person in Great Britain who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.’
9.	Those complex provisions can be distilled into the following propositions: 
•	Claimants who come within regulation 21AA(4) are not persons from abroad. They will all have the right to reside and do not have to be habitually resident. 
•	In order to be entitled to income support, anyone else must be habitually resident (regulation 21AA(1)). If they are not, they are persons from abroad, whose applicable amount is nil.
•	In order to be habitually resident, they must have a right to reside (regulation 21AA(2)). If they do not, they are persons from abroad, whose applicable amount is nil.
•	But persons who come within regulation 21AA(3) cannot have a right to reside and cannot, therefore, be habitually resident, As a result, they are persons from abroad, whose applicable amount is nil.
The claimant’s arguments
10.	The claimant’s representative put three arguments to the tribunal. Each requires separate consideration.
Family member
11.	The claimant’s representative argued that the claimant had a right to reside as a family member of her eldest child. That child began a university course in September 2005. From 8 May 2006, she worked full-time during the vacations and on Saturdays during term time. Her hourly rate was £7.50 and she helped her mother financially as far as she was able to. 
12.	If the claimant was a family member of her daughter, she was not a person from abroad by virtue of regulation 21AA(4)(d). ‘Family member’ is defined by Article 2 of the Directive:
‘2)	“Family member” means:
... 
	(d)	the dependent direct relatives in the ascending line’
13.	The tribunal accepted this argument as the main basis for allowing the appeal. It recorded that the work done was genuine and effective and not marginal and ancillary. However, it did not consider whether the claimant was dependent on her daughter. That was an error of law. 
14.	I analysed the relevant authorities on dependence in CIS/2100/2007. I direct the tribunal at the rehearing to investigate and determine whether the claimant was dependent in accordance with that analysis. 
15.	The tribunal will also have to consider afresh whether the work done by the claimant’s student daughter was sufficient to give her the status of a worker. I analysed the relevant authorities in CIS/1793/2007. At the rehearing, the tribunal must investigate and determine whether the claimant’s work was genuine and effective and not marginal and ancillary in accordance with that analysis. 
Baumbast
16.	The claimant’s representative argued that the claimant had a right to reside as a former worker with a child at school. He relied on the decision of the European Court of Justice in Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091. 
17.	The tribunal accepted this argument as an alternative basis for allowing the appeal. It did so, because the claimant’s youngest child ‘had installed herself in the UK during the exercise of [the claimant’s] right of residence as a migrant worker.’
18.	In Baumbast, the Court decided that the dependent child of a worker had an independent right to education and that her primary carer had the right to reside to ensure that the child could effectively exercise that right. It is distinguishable from this case in that the claimant was not working at the time when her youngest child entered general education. The tribunal was wrong to treat the issue as depending on the time when the child installed herself in the United Kingdom.
19.	There is an issue whether Directive 2004/38 is exhaustive of the rights of residence or whether there is still scope for reasoning such as that in Baumbast. There is also an issue whether the case depends on the parents remaining self-sufficient or in work. These issues have been referred to the European Court of Justice by the Court of Appeal in London Borough of Harrow v Ibrahim [2008] EWCA Civ 386:
‘In circumstances where (i) a non-EU national spouse and her EU national children accompanied an EU national who came to the United Kingdom (ii) the EU national was in the United Kingdom as a worker (iii) the EU national then ceased to be a worker and subsequently left the United Kingdom  (iv) the EU national, the non-EU national spouse and children are not self-sufficient and are  dependent upon social assistance in the United Kingdom (v) the children commenced primary education in the United Kingdom shortly after their arrival there while the EU national was a worker:
(1)	do the spouse and children only enjoy a right of residence  in the United Kingdom if they satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004?;
OR
(2)(i)	do they enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968, as interpreted by the Court of Justice, without being required to satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004; and
(ii)	if so, must they have access to sufficient resources so as not to become a burden on the social assistance system of the host Member State during their proposed period of residence and have comprehensive sickness insurance cover in the host Member State?;
(3)	if the answer to question 1 is yes, is the position different in circumstances such as the present case where the children commenced primary education and the EU-national worker ceased working prior to the date by which Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 was to be implemented by the Member States?’
20.	If the outcome of the rehearing depends on Baumbast, the tribunal will have to decide whether to stay the case to await the answers to the reference. 
Retained worker status
21.	The claimant’s representative argued that the claimant retained her worker status, because she was temporarily unable to work as a result of an illness or accident. The tribunal, having allowed the appeal on other grounds, did not find it necessary to deal with argument. However, it did question whether the claimant could retain worker status on the ground of illness when she had been unemployed immediately before she became ill. It seems that the representative did not pursue the issue.
22.	The tribunal was right to ask this question. The answer to it is complex and reflects the structure of regulation 21AA.
23.	The place to start is regulation 21AA(4), because it provides for cases in which a claimant is not a person from abroad. As the relevant provisions are drafted in terms of the Directive, they have to be applied by reference to the relevant Articles and not by reference to the Immigration (European Economic Area) Regulations 2006 which implemented the Directive. This is important, because the Regulations may be more favourable to the claimant than the Directive. 
24.	Regulation 21AA(4)(c) 	provides that a claimant is not a person from abroad if she retained the status of a worker under Article 7(3) of Directive 2004/38, which provides:
‘(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.’
25.	 How should that be applied?
26.	The first issue is whether the claimant was ever a worker? Her work was part-time and lasted only two and a half months or so. Those features are not necessarily fatal. I analysed the relevant authorities in CIS/1793/2007. At the rehearing, the tribunal must investigate and determine whether the claimant’s work was genuine and effective and not marginal and ancillary in accordance with that analysis. 
27.	In CH/3314/2005 and CIS/3315/2005, Mr Commissioner Rowland decided that work was marginal and ancillary if the claimant had to rely on a social security benefit for (additional) support. With respect, I am not persuaded by his analysis of the case law of the European Court of Justice. He was concerned, in part, to ensure that claimants of different status and in different circumstances were treated consistently. I believe that the inconsistencies to which he referred are accounted for by the special significance of the free movement of worker. This is a fundamental conception in EC law and, accordingly, is interpreted broadly. 
28.	If the claimant was a worker, the second issue is whether she retained worker status under Article 7(3). She was still capable of work, so head (a) does not apply. There is no evidence that she embarked on vocational training, so head (d) does not apply. She had not been employed for more than one year, so head (b) does not apply. That leaves head (c). It applied initially, because she became involuntarily unemployed within the first twelve months and had registered as a jobseeker with the relevant employment office in order to claim her jobseeker's allowance. However, it provides only that ‘the status of worker shall be retained for no less than six months’. That allows each Member State to provide more generously. However, the protection given by the Directive is limited to six months and regulation 21AA(4)(c) refers to the Directive and not to national law. 
29.	The third issue is whether national law is more favourable to the claimant. That law is contained in the Immigration (European Economic Area) Regulations 2006, which implement the Directive. Regulation 6(2) implements Article 7(3):
‘(1)	In these Regulations, “qualified person” means a person who is an EEA national and in the United Kingdom as-
(a)	a jobseeker;
(b)	a worker;
…
(2)	A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if-
(a)	he is temporarily unable to work as the result of an illness or accident;
(b)	he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant office and-
	(i)	he was employed for one year or more before becoming unemployed;
	(ii)	he has been unemployed for no more than six months; or
	(iii)	he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged;
(c)	he is involuntarily unemployed for no more than six months; or
(d)	he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.
…
(4)	For the purpose of paragraph (1)(a), “jobseeker” means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.’
30.	When she was first unemployed, the claimant was a jobseeker for the purpose of paragraph (1)(a) as defined by paragraph (4). As such she was a qualified person who had the right to reside under regulation 14(1). However, this would not help her when she became ill, because there is no provision for a person to retain status as a jobseeker.
31.	However, the claimant also satisfied paragraph (2)(b)(ii), (iii) and (c). After being unemployed for more that six months, she satisfied paragraph (2)(b)(iii). Her entitlement to a jobseeker's allowance is evidence that she was both seeking employment and had a genuine chance of being engaged. Accordingly she retained worker status under the 2006 Regulations and was a qualified person who had the right to reside under regulation 14(1).
32.	This right to reside is not provided for by the Directive and is, therefore, outside the scope of regulation 21AA(4). However, it is within regulation 21AA(2).
33.	If the claimant has a right to reside so far, the fourth issue is whether she continued to retain her status as a worker under regulation 6(2) when she became ill. This raises two questions. 
34.	The first question is: can she move from one head of regulation 6(2) to another? My answer is: yes. This is the answer suggested by the context and there is nothing to indicate otherwise. The context is the retention of worker status for those who have not abandoned the labour market, but who are either unable to work or to find work or are training to improve their job prospects. The sequence in which those events occur is purely arbitrary and I can see no policy factor that limits the beneficial effect of regulation 6(2) or Article 7(3) to the first of the eventualities that happens to occur. 
35.	The second question is: by what test or standard is the claimant’s ability to work to be determined? Regulation 6(2)(a) implements Article 7(3)(a) of the Directive and must be interpreted and applied accordingly. Inability to work is a concept used in EC legislation and, in order to ensure uniformity in that legislation between Member States, it must be interpreted in the same way throughout the EU. It cannot, therefore, depend upon the particular domestic legislation governing incapacity benefits. The language of the legislation has to be interpreted and applied as it stands. The context provides some guidance. It ensures continuity of worker status for someone who would otherwise be employed or looking for work. That employment or search for employment provides the touchstone against which the claimant’s disabilities must be judged. The question is: can she fairly be described as unable to do the work she was doing or the sort of work that she was seeking?
Disposal
36.	The tribunal went wrong in law in respect of both grounds on which it allowed the appeal. I must, therefore, set aside its decision. It is possible that one of the three arguments that have been put on behalf of the claimant may succeed and I have directed a rehearing for them to be considered. 

Signed on original
on 13 May 2008	Edward Jacobs
Commissioner