CPC/1433/2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The Secretary of State’s appeal is allowed.  The decision of the Hull tribunal given on 13 December 2007 (the tribunal) was erroneous in point of law.  I set its decision aside and give the decision which the tribunal should have given, which is that the claimant was not a person with a right to reside in the United Kingdom and therefore was not entitled to state pension credit from 9 January 2007.  

2.	The claimant is a Portuguese national whose adult children seemed to have come to the United Kingdom in 2001 or 2002.  She joined one of her sons in the United Kingdom on 8 August 2004 and has lived here ever since.  She has not worked since coming to the United Kingdom but successfully claimed jobseeker’s allowance.  In January 2007 she became 60 years of age and her entitlement to jobseeker’s allowance ceased.  On 9 January 2007 she made a claim for state pension credit.  On 11 June 2007 the Secretary of State decided that the claimant was to be treated as a person not in Great Britain because she was not a person with a right to reside in the United Kingdom.  This meant that she was not entitled to payment of state pension credit. 

3.	The claimant’s appeal to the tribunal was made on the basis that the son with whom she resided was a qualified person, and she was a dependent family member in the ascending line.  The tribunal accepted that both those propositions were correct, and allowed the claimant’s appeal.  Although the Secretary of State disputed this, it may well be that the claimant’s son was a qualified person. But was the tribunal right to conclude that the claimant was her son’s dependent, and was it right to decide that the claimant was not excluded from entitlement on a proper construction of Regulation 2 State Pension Credit Regulations?

4.	The Secretary of State argues that the fact of the claimant’s dependency was not established by the tribunal, and that the tribunal was mistaken in accepting that the claimant’s son’s job seeking status was sufficient to enable her to satisfy the relevant provision of the State Pension Credit Regulations (SPC Regulations).  Leave to appeal was granted by the tribunal chairman.

5.	Regulation 2 of the State Pension Credit Regulations 2002 is a much amended provision made pursuant to Section 1(5) State Pension Credit Act 2002, which enables regulations to be made as to the circumstances in which a person is to be treated as being or not being present in Great Britain.  Regulation 2 contains an unfortunate number of double negatives.  It sets out the test according to which a person is to be treated as present or not present in Great Britain:

	“	2.	-	(1)	A person is to be treated as not in Great Britain if, subject to the following provisions of this regulation, he is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

				(2)	No person 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 person 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 the Council Directive No. 2004/38/EC; or 

						(d)	Article 39 of the Treaty establishing the European Community (in a case where the person is seeking work in the United Kingdom …)

				(4)	A person is not to be treated as not in Great Britain if he is –

						(a) a worker for the purposes of Council Directive 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‑paragraphs (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;
                                                               ……”

6.	With the double negatives removed, the effect of this provision is clearer.  It falls into two parts.  The first part, regulation 2(2) and (3), sets out those who will not be treated as habitually resident, and they will not have a right to reside. The second part, regulation 2(4), sets out those who will be treated as having a right to reside. Where does this leave the claimant?   Regulation 2(3) excludes a person present during the initial three months period of residence conferred by Article 6 2004/38/EC and set out in regulation 13 Immigration (European Economic Area) Regulations (the EEA Regulations), and a person whose extended right of residence under regulation 14 EEA Regulations is dependent on being a jobseeker, or a family member of a jobseeker is also excluded.  ‘Family member’ here is defined by reference to regulation 7 of the EEA Regulations.  This includes a dependent direct relative in the ascending line.  Clearly, none of this helps the claimant. Her son’s status as a jobseeker means that regulation 2(2) and (3) require her to be treated as a person who does not have a right to reside in the United Kingdom.  Does regulation 2(4) of the regulations help her?  As she is not a worker or a self-employed person, and she is not a person who has a permanent right of residence, the answer to that question depends on whether she satisfies regulation 2(4)(c) or (d). This requires consideration of Article 7(3)(a) and (b), and Article 2(a), (b) and (c) of Directive 2004/38/EC.  These provide:

	“Article	7.(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 is registered as a jobseeker with a relevant employment office; 

		   Article 2.2: sub-paragraphs (a), (b) and (c) relate to the definition of ‘family 
                                                Member’. It means: 
.     
                        (a) the spouse
                        (b) the partner with whom the Union citizen has contracted a registered 
                             partnership
                        (c) the direct descendants who are under the age of 21 or are dependents and       
                                and those of the spouse or partner as defined in point (b)

It is Article 2(2)(d) which refers to dependent direct relatives in the ascending line, not sub-paragraphs (a), (b) or (c).	

7.	The claimant is not temporarily unable to work as a result of illness, and though she was previously in duly recorded involuntary unemployment (though without satisfying the ‘having been employed for more than one year’ condition) she is no longer registered as unemployed.  Therefore Article 7(3)(a) and (b) does not assist her.  As a relative in the ascending line, she is not a person who is a family member within the meaning of Article 2 (a), (b) or (c).  The tribunal went wrong at this point by referring to regulation 7 of the EEA Regulations.  Regulation 2(2) and (3) SPC Regulations refer to this definition of ‘family member’, but regulation 2(4) of the regulations refers to Directive 2004/38/EC, not the EEA Regulations, and excludes a person in the claimant’s position.  This means that regulation 2(4) does not assist her.  Although Article 37 of Directive 2004/38/EC provides that where national law is more favourable than the provisions of the Directive, it is national law which should apply,  this cannot assist in a case where national law has chosen to distinguish the circumstances in which the EEA Regulations will apply, and those in which Article 2 of the Directive will be applicable.  In short, in respect of her claim to State Pension Credit, the claimant is not a person with a right to reside in the United Kingdom.  This conclusion is consistent with the analysis of Article 18 EC Treaty by the Advocate General:

“the basic principle of Community law is that persons who depend on social assistance will be taken care of in their own Member State”
(Advocate General Geelhoed, paragraph 70, Trojani Case C-456/02)

8.	For the sake of completeness, I go on consider also the question of whether the claimant was her son’s dependant.  As the tribunal noted, whether one person is a dependant of another person cannot be answered by reference either to the SPC Regulations or the EEA Regulations.  The Decision Maker’s submission to the tribunal referred it to Case C-I/05, the Jia case.  The tribunal was wrong to decide the question of dependency by reference to domestic provisions implementing rights conferred under EU legislation without considering the European jurisprudence.

9.	The Secretary of State provided the tribunal with a copy of the European Court of Justice’s decision in Case-1/05, Jia.  The claimant’s representative disputed that this case could be relied upon because it was given under Directive 73/148/EC which was repealed by Directive 2004/38/EC.  What is meant by “dependant” in this context was considered by Commissioner Jacobs in CIS/2100/2007.  He analysed the conclusions to be drawn from Lebon (Case - 316/85), Chen (Case – 200/02), as well as Jia (Case – 1/05).  All three of these cases were decided under the now repealed Directive 73/148/EC.  However, Commissioner Jacobs noted that Directive 2004/38/EC, as stated in the third preamble to the Directive, codifies and reviews the existing law “in order to simplify and strengthen the right of free movement and residence of all Union citizens”.  In paragraph 49 of his decision, the Commissioner states that taking the preamble and substantive content of the Directive into account, he could see no basis for treating Directive 2004/38/EC as limiting the scope of the previous case law.  I respectfully agree with that view.

10.	What an analysis of Lebon, Chen, and Jia shows is that the court focused on the factual situation:  the only question was whether the family member was in fact supported in such a way as to be properly regarded as a dependent.  In paragraph 37 of the Jia decision the court states:

	“In order to determine whether the relatives in the ascending line of the spouse of a community national are dependent on the latter, the host Member State must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves.  The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they apply to join the community national.”  (emphasis added)

11.	It has never been suggested in this case that the claimant was dependent on her son before she came to join him in the United Kingdom.  The evidence is that the claimant worked part‑time in Portugal and received certain State benefits there.  I note that when interviewed on 18 April 2007 (see page 43 of the papers) the claimant stated her son had never supported her when she was in Portugal.  Although the Secretary of State disputes whether the claimant has been a dependent since coming to the United Kingdom, I think the biggest problem for the claimant in establishing that she is a dependent of her son is that the need for material support did not exist in her State of origin.  The Secretary of State disputes even that there was any dependency when in the United Kingdom because the claimant was awarded jobseeker’s allowance and supported herself on this.  That the claimant was her son’s dependent while he was himself in receipt of means‑tested benefit is, I accept, unlikely, but at least during the period when her son was in work I would consider it probable that he provided her with at least some of the basic needs of life – for example, the roof over her head. However, for much of the time the claimant was in the United Kingdom, both she and her son were dependent on means tested state benefits, and the tribunal did not address how, in these circumstances, it reached its factual conclusion concerning dependency.

 12.  Accordingly, I find that the tribunal was wrong to accept that the evidence established   that the claimant was her son’s dependent.  Both for this reason and the analysis of regulation 2 SPC Regulations set out above, I must set aside the tribunal’s decision and give the decision set out in paragraph (1) above.

				(Signed on the Original)	Mrs A Ramsay
								Deputy Commissioner 

	                                                                                     31 July 2008