PLH                                                                          Commissioner's File:  CIS 868/08

	SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

     1.     	This appeal by the Secretary of State, brought with the leave of the tribunal chairman, has to succeed.  The decision of the Coventry appeal tribunal on 3 October 2007 (Mr C J Jones, chairman, sitting alone) was erroneous in point of law in holding that the claimant had a right to reside in the United Kingdom with the status of a worker for the purposes of his income support claim made on 12 October 2006, when the evidence before the tribunal did not show that the claimant had ever worked for remuneration in this country since coming here from Germany in June 2003, though during that time he had been attempting to find paid employment here.  
     2.     	I set the tribunal decision aside and in exercise of the power in section 14(8)(a) Social Security Act 1998 substitute the decision I am satisfied the tribunal ought to have given on the evidence before it, namely that as the claimant was not shown to have a right to reside in the United Kingdom other than as a workseeker, he had to count as a “person from abroad” for the purposes of his income support claim by virtue of regulation 21AA Income Support (General) Regulations SI 1987 No. 1967 and accordingly had no entitlement to that benefit on his claim made on 12 October 2006.  
     3.     	The claimant is a man now aged 58, who was born in Somalia but had lived and worked in Germany from 1988 until he came to the United Kingdom in June 2003.  Since 2001 he has held German nationality and a German passport.  He came to this country when the firm he was working for in Germany closed down, and since then had been actively looking for employment in this country but had not succeeded in finding any jobs available.  Between 2003 and 2005 he had done voluntary work as a community co-ordinator for the Somalia Coventry and Warwickshire community but there was no evidence of his having been in any paid employment.  From 23 April 2004 to 23 February 2006 and from 1 March to 11 October 2006 the claimant had been on Jobseeker’s Allowance.  On the following day, 12 October 2006, he made the claim for income support which gave rise to these proceedings, as a person presently unable to work through asthma.  He said he had left Somalia for political reasons in 1988, and apart from his daughter who lived in Coventry, his wife and all the remaining members of his family were still in Somalia and he had no plans to bring them to this country.
     4.     	The decision of the Secretary of State under appeal to the tribunal was given on 18 December 2006.  It was to refuse the claimant income support on the ground that he did not have a “right to reside” in the United Kingdom of the required type for the purposes of regulation 21AA already cited, which has been the governing provision in this kind of case since it came into force on 30 April 2006.  As the written departmental submission to the tribunal on the claimant’s appeal correctly stated, that regulation lays down a general rule that to qualify for income support a claimant is required to show that he or she has a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland otherwise than as a person in an excluded category under regulation 21AA(3): of which the particular one in point in this case is a right to reside here as a workseeker under regulation 14 Immigration (European Economic Area) Regulations SI 2006 No 1003.  A person in that capacity thus does not qualify for income support, though they may be able to obtain Jobseeker’s Allowance subject to meeting the conditions for claiming that benefit, which as already noted the claimant did over an extended period before making his income support claim.
     5.     	Given that those provisions of the regulations had been in force since 30 April 2006 and therefore applied to this claim, there is no answer to the Secretary of State’s appeal against the tribunal chairman’s decision of 3 October 2007 as amplified by his statement of reasons issued to the parties on 9 November 2007 at pages 39 to 41, in the course of which he directed himself that:  
“The issue is whether he has a “right to reside” in the UK under the provisions of regulation 14 of The Immigration (European Economic Area) Regulations 2000.  If he has a right to reside then he may be entitled to Income Support. …The appellant in his CV disclosed that he had worked in the UK albeit in a voluntary capacity between 2003 and 2005. This was supported by the appellant’s oral evidence. …He had actively sought employment in the UK but without success.”
and on that basis concluded that:
“The Tribunal considered that the appellant was a job seeker in the sense that he had worked in the UK.  He had retained worker status and was therefore entitled to claim income support.  He had been registered with the Job Centre as a “relevant employment office” and had worked in the UK for at least 12 months.  The appellant is therefore entitled to income support from the date of his claim on 12 October 2006.”
     6.     	As that passage shows, the decision unfortunately failed to differentiate between the status of a “worker” and a “work seeker”.  There was no evidence the claimant had ever had “worker” status in this country, as his activities had consisted of voluntary community work no doubt of considerable value in human terms, but outside the “economic” form of activity for remuneration with which the category of worker for the purposes of European Community Law and Article 39 of the EC Treaty is concerned.  A “workseeker” the claimant undoubtedly was, for at least the greater part of his time since arriving in this country in June 2003; though the Secretary of State stated to the tribunal that he lost even that status by claiming income support on the basis of inability to work.  
     7.     	I think the tribunal was right in assuming that for all practical purposes the claimant had been a jobseeker at all material times before his income support claim, but that conclusion is inconsistent with his having or retaining worker status; and as already noted there was no basis in the evidence before the tribunal of his ever having had that status in this country since the only work he did was voluntary and he had been unsuccessful in obtaining any employment for remuneration: cf. Case C-66/85 Lawrie-Blum [1986] ECR 2121, ECJ.  I consider the submissions on behalf of the Secretary of State by Miss A Myers dated 4 March 2008 at pages 63 to 64 on this point to be clearly correct, and on that basis the claimant whose presence here before the date of making his income support claim had been as a workseeker, and never a worker, had failed to show a right to reside of the relevant type for the purposes of claiming income support under regulation 21AA.
     8.     	It therefore follows that the claimant had to be counted as a “person from abroad” on his income support claim of 12 October 2006, so the tribunal chairman’s decision to the contrary is set aside and the original decision of the Secretary of State refusing the claim on 18 December 2006 was correct and is confirmed. 

(Signed)

P L Howell
Commissioner
24 September 2008