[2008] UKSSCSC CSIS_467_2007 (22 February 2008)

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the tribunal given at Aberdeen on 23 April 2007 is not erroneous upon a point of law.  The appeal fails.  I dismiss it.

2.	This appeal came before me for an oral hearing on 30 January and 18 February 2008.  The claimant was represented by Miss Dunlop, QC, acting in the capacity of providing representation under the Free Representation Unit.  With her was Mrs Stewart of the Aberdeen Citizens’ Advice Bureau.  The Secretary of State was represented by Mr Brodie, Advocate, instructed by Mr Brown, Solicitor of the Office of the Solicitor to the Advocate General.

3.	The claimant has appealed to the Commissioner against the decision of the tribunal which confirmed the decision of the Secretary of State issued on 28 August 2006.  That decision was that the claimant could not be treated as habitually resident in the United Kingdom because she does not have a right to reside in the United Kingdom.  Therefore, she is a person from abroad whose income support applicable amount is nil from the date of her claim, namely 2 June 2006.  It will be noted from the tribunal’s findings in fact that the claimant resumed work in September 2006.  Accordingly, the issue before the tribunal related to the claimant’s applicable amount for a closed period of approximately two to three months.  

4.	The principal basis upon which the tribunal reached the conclusion they did, in relation to the claimant’s applicable amount and why she was a person from abroad, was that she was not a worker.  If the claimant is not a worker, then the decision that her applicable amount is nil is correct.  This was accepted by Miss Dunlop.  

5.	The findings in fact upon which the tribunal made that decision were as follows:

	“1.	The appellant is aged 30.  She is separated.  She has no income and no savings.

2.	The appellant is a Polish National.  She came to the UK on 18.3.06.  She had not arranged employment prior to her arrival in the UK.  She obtained a Worker Registration Card and Certificate.  She found work in a call centre in Forres and started work there on 20.3.06.  Her work was registered under the Workers Registration Scheme.

3.	The appellant sustained a back injury in a car accident in Poland in 2001.  She still has metal screws in her back which irritate the nerves and she is now awaiting an operation to remove them.

4.	The appellant worked at the call centre from 20.3.06 for about one month when she went off work for about one week due to her sore back.  She was paid Statutory Sick Pay on 21.4.06 in respect of her period of absence.  She returned to work for several days, less than one week, but her back was so sore she was unable to continue and she was admitted to Dr Gray’s Hospital in Elgin on 4.5.06.  She was subsequently transferred to Aberdeen Royal Infirmary.  She did not return to work.  Her employment was terminated on 15.5.06.  During her period of employment she was paid weekly.  The appellant moved from Forres to Aberdeen after her employment was terminated.  She was unemployed until the beginning of September 2006 when she started working in the Microbiology Department at Aberdeen Royal Infirmary.”

6.	The reasoning by the tribunal in that regard is set out in their reasons as follows:

“(6)  The tribunal concluded from the evidence that as at the date of her claim for Income Support she was not a qualified person and in particular she was not “a worker”.  The appellant had come to the UK without means to support herself and with a long term known injury.  As an EC national she was entitled to be here whilst working and she gained employment very quickly but she worked for only just over one month before her pre-existing back condition caused her to be off work.  The appellant gave her evidence clearly and was a pleasant and credible witness.  She did, however, have difficulty in recalling exactly the dates when she was off work but it was accepted that she had been in receipt of Statutory Sick Pay on 21.4.06 and accordingly it would appear that she was off work for about a week around that time.  She initially stated that she went back to work for 2 weeks before she was off again but later on thinking about it, she said there was only a few days between her return to work at the end of April and when she went off again and was eventually admitted to hospital on 4 May.  She was then subsequently dismissed as she was unable to work and indeed she did not work again until the beginning of September 2006.  The tribunal did not consider that her period without work could be considered at any stage to be a temporary absence given that she only arrived in the UK on 18.3.06, started work on 20.3.06 and although in employment with a registered employer until she was dismissed on 15.5.06, she actually worked for a period of about 5 weeks.  The appellant’s representative referred to R(IS) 12/98 in which a French National who had worked in the UK for 5 weeks gained worker status.  The tribunal did not consider that the appellant’s situation was analogous.  She had worked for only one month before she was unable to continue due to a longstanding condition and indeed her absence did not turn out to be short term as a period of 3 months elapsed before she was able to look for work again.  In the circumstances the tribunal were not satisfied that her employment at the call centre was anything other than a temporary measure and could not be considered genuine and meaningful conferring the worker status for the necessary period.”

7.	It was Miss Dunlop’s submission that the tribunal erred in law in respect of this conclusion.  She helpfully set out in a brief written submission, what her position in that regard was.  It was as follows:

•	“The term “worker” is a community law term, and must be given a community‑wide meaning, albeit that it is for a national court or tribunal to apply the definition to the facts of a specific case Levin v Staatssecretaris van Justitie [1982] ERC 1035;  Steiner and Woods, paragraph 20.3.1, and cases referred to there).

•	The community law definition is that, for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration (Case 66/85 Lawrie-Blum [1986] ECR 2121).

•	To be a “worker” a person must pursue activities that are effective and genuine, to the exclusion of activities that are on such a small scale as to be regarded as marginal and ancillary (Wyatt and Dashwood, p 714).

•	By way of elaboration of the term “marginal and ancillary”, activities which have fallen into this category have included those which are merely a means of rehabilitation or reintegration (Wyatt and Dashwood, p 714).

•	The determination of whether an individual is carrying on activity as a “worker” must be based on an assessment of their activity while it is carried on (here, between 20.3.06 and 15.5.06).  The conduct of the person before and after the period of employment is not relevant.  (Case C-413/01 Ninni-Orasche [2003] ECR 1-13187).

•	It is important to be precise about the nature of [the claimant’s] medical problem.  Rather than a long-term incapacitating medical condition, the finding was that she had previously sustained a back injury and that the screws placed in her back at the time of injury caused nerve irritation/back pain and required removal.  Thus, the finding was more of the nature of an acute problem than a chronic one.

•	Before a Court could hold that a person’s activities were not genuine, there would require to be evidence to that effect – for example, of an intention to come to the UK and embark on a course of study rather than an intention to be engaged in economic activity.

•	In the present case, there is no finding to that effect.

•	On the contrary, during the relevant period, [the claimant] clearly satisfied the Lawrie-Blum definition of a “worker””.

8.	Miss Dunlop seemed to contradict her written submission to the extent that she submitted that, on the question as to whether the activity pursued by the claimant was effective and genuine, it was to the nature of the employment that had to be addressed rather than the claimant’s capacity to carry out the work.  

9.	Mr Brodie submitted the tribunal had erred in law in relation to their treatment of the issue as to whether the claimant was a worker.  However, he did submit that there was an issue to be determined in relation to the question as to whether the claimant was in fact a worker in the circumstances of the case.  In particular, he indicated that there was an issue in relation to the state of health of the claimant upon arrival and when she started work and that this could be a relevant consideration.  

10.	I accept Miss Dunlop’s submission, and I do not think that Mr Brodie sought to contradict it, that the word “worker” falls to be approached in the manner set out in the first point in her written submission set out in paragraph 7.  It seems to me that case 413/01 Franca Ninni-Orasche v. Bundesminister fϋr Wissenchaft, Verkehr and Knust conveniently sets out the approach of the European Court of Justice as to what is a “worker”.  Thus, in order to determine this appeal, it is necessary to look at the principle enunciated by the Court in the context of the particular facts of that case.  I have therefore set out at length what was said by the Court:

“23. First of all, it is settled case-law that the concept of worker, within the meaning of Article 48 of the Treaty, has a specific Community meaning and must not be interpreted narrowly (see, to that effect, inter alia, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 16, Case 197/86 Brown [1988] ECR 3205, paragraph 21, Case C-3/90 Bernini [1992] ECR I-1071, paragraph 14, and Case C-337/97 Meeusen [1999] ECR I-3289, paragraph 13). 
24. Moreover, that concept must be defined in accordance with objective criteria characterising the employment relationship in view of the rights and duties of the persons concerned. The essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person in return for which he receives remuneration (see Lawrie-Blum, cited above, paragraph 17, Case 344/87 Bettray [1989] ECR 1621, paragraph 12, and Meeusen, cited above, paragraph 13). 
25. In the light of that case-law, it must be held that the fact that employment is of short duration cannot, in itself, exclude that employment from the scope of Article 48 of the Treaty. 
26. In order to be treated as a worker, a person must nevertheless pursue an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and accessory (see, in particular, Levin, cited above, paragraph 17, and Meeusen, paragraph 13). 
27. When establishing whether that condition is satisfied, the national court must base its examination on objective criteria and assess as a whole all the circumstances of the case relating to the nature of both the activities concerned and the employment relationship at issue. 
28. It should be stated that, with respect to the assessment whether employment is capable of conferring the status of worker within the meaning of Article 48 of the Treaty, factors relating to the conduct of the person concerned before and after the period of employment are not relevant in establishing the status of worker within the meaning of that article. Such factors are not in any way related to the objective criteria referred to in the case-law cited in paragraphs 23 and 24 of this judgment. 
29. In particular, the three factors referred to by the national court, namely the fact that the person concerned took up employment as a waitress only several years after her entry into the host Member State, that, shortly after the end of her short term of employment, she obtained a diploma entitling her to enrol at university in that State and that, after that employment had come to an end, she attempted to find a new job, are not linked either to the possibility that the activity pursued by the appellant in the main proceedings was ancillary or to the nature of that activity or of the employment relationship. 
30. For the same reasons, nor can the Court accept the argument put forward by the Danish Government that, in order to assess whether activities pursued as an employed person are effective and genuine, it is necessary to take account of the short term of the employment in relation to the total duration of residence by the person concerned in the host Member State, which, in the main proceedings, was two and a half years. 
31. Finally, as regards the argument that the national court is under an obligation to examine, on the basis of the circumstances of the case, whether the appellant in the main proceedings has sought abusively to create a situation enabling her to claim the status of a worker within the meaning of Article 48 of the Treaty with the aim of acquiring advantages linked to that status, it is sufficient to state that any abusive use of the rights granted by the Community legal order under the provisions relating to freedom of movement for workers presupposes that the person concerned falls within the scope ratione personae of that Treaty because he satisfies the conditions for classification as a worker within the meaning of that article. It follows that the issue of abuse of rights can have no bearing on the answer to the first question. 
32. Having regard to the preceding considerations, the answer to the first question must be that the fact that a national of a Member State has worked for a temporary period of two and a half months in the territory of another Member State, of which he is not a national, can confer on him the status of a worker within the meaning of Article 48 of the Treaty provided that the activity performed as an employed person is not purely marginal and ancillary. 
It is for the national court to carry out the examinations of fact necessary in order to determine whether that is so in the case before it. Circumstances preceding and subsequent to the period of employment, such as the fact that the person concerned: 
- took up the job only some years after his entry into the host Member State, 
- shortly after the end of his short, fixed-term employment relationship, became eligible for entry to university in the host Member State by virtue of having completed his schooling in his country of origin, or 
- attempted to find a new job in the period between the end of the short, fixed-term employment relationship and the time when he took up his studies, are not relevant in this connection. 
11.	It is to be noted that whilst in paragraph 28, the Court excludes from consideration, factors relating to conduct before and after the period of employment, it makes it clear from paragraph 24 that the concept must be justified with objective criteria characterising the employment relationship in view of the rights and duties of the persons concerned.  In paragraph 32, the Court held that the fact that a national of a member state has worked for a temporary period of two and a half months in the territory of another member state of which he is not a national can confer the status of a worker provided that the activity performed as an employed person is not purely marginal and ancillary.  The Court then follows that with the statement that it is for the National Court to carry out the necessary examinations of fact.  That is also set out in paragraph 27.  

12.	Whilst the essential feature of an employment relationship is as set out in Lawrie‑Blum, as set out in paragraph 24 of Franca Ninni-Orasche, it appears to me that physical capacity to perform the work is also a material feature in an employment relationship as the lack of such capacity can lead to the termination of employment.  This case on its facts can be distinguished from that in Ninni-Orasche in respect that physical capacity to fulfil the employment was not an issue in that case.  That is not the position in the instant case.  The claimant had a underlying medical condition when she arrived in the United Kingdom.  See Finding in Fact 3.  Employment in the UK was obtained almost immediately upon her arrival here and the work carried out by her lasted a very short time.  The tribunal record the short duration of the employment, the interruption to it due to her physical condition and the fact that she was “dismissed as she was unable to work” and did not work again until September 2006.  It seems to me that the tribunal in this case carried out and fulfilled what was required of them in paragraph 27 of Ninni-Orasche.  The claimant’s physical capacity for work was quite clearly an issue when considering the employment relationship, which was critical for the determination as to whether the claimant had acquired the status of a worker.  In this case, the tribunal made sufficient findings in fact in that regard to enable them to properly deal with the employment relationship.  I do not accept Mr Brodie’s and Miss Dunlop’s submissions that it was necessary for the tribunal to get into the issue of the claimant’s intention in coming to the United Kingdom.  Nor do I consider that the tribunal needed to go beyond the findings they made for them to reach the conclusion that they did.  I cannot fault them in respect of their findings and reasons which led them to the conclusion which they did.  The existing nature of the claimant’s condition, the lack of physical capacity to do the work, the short interrupted duration of the employment and the reasons for her dismissal are compelling findings in support of the conclusion reached by a tribunal.  No error in law on the part of the tribunal has accordingly been demonstrated.  There are no grounds for the Commissioner to interfere.

13.	It was accepted by both parties that if the tribunal was right in finding that the claimant was not a worker, the claimant’s appeal must fail.  It is only if the claimant is a worker that the question as to whether or not she retained the status of a worker would arise.  Thus, it is not necessary in the circumstances, to deal with the issue of retained status which is to be the subject of an appeal to the House of Lords in Ewazalewska v. the Department of Social Development in Northern Ireland.  It was submitted that I might sist the case pending a decision of the House of Lords.  However, as this is a secondary issue in this case and as I am against the claimant’s position on the primary issue, there would be no point in sisting the case.  Thus I am not prepared to do so.

14.	The appeal fails.

					(Signed)
					D J MAY QC
					Commissioner
					Date:  19 February 2008