Barry v Southwark London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Thomas,Lord Justice Lloyd |
| Judgment Date | 19 December 2008 |
| Neutral Citation | [2008] EWCA Civ 1440 |
| Date | 19 December 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2007/2903 |
[2008] EWCA Civ 1440
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LAMBETH COUNTY COURT
HIS HONOUR JUDGE WELCHMAN
Lady Justice Arden
Lord Justice Thomas and
Lord Justice Lloyd
Case No: B5/2007/2903
Richard Gordon QC & Adrian Berry (instructed by Messrs Pierce Glynn) for the Appellant
Kerry Bretherton (instructed by LB Southwark Legal Services) for the Respondent
Hearing date: 3 October 2008
Judgement
This appeal concerns one of the eligibility conditions for social housing. A person is not in general ineligible under this condition if he is a worker from another EEA State. But if he has ceased to work, certain restrictions apply. In particular, he must not have been unemployed for more than six months. In this context, Community law governs the concept of “worker”. By a decision dated 4 July 2007, the review officer of the respondent, the London Borough of Southwark (“Southwark”), pursuant to s 202 of the Housing Act 1996 (“the 1996 Act”), determined that the appellant, Mr Barry, a citizen of the Netherlands and thus a citizen of the European Union, was not a “worker” for the purpose of Community law for a period of two weeks in July 2006 in which he worked as a steward at the All England Tennis Championships at Wimbledon. This was the only employment that he had undertaken in the relevant six month period. The question to be decided on this appeal is whether that decision discloses an error of law. By an order dated 16 November 2007, HHJ Welchman, sitting in the Lambeth County Court, held on an appeal to the County Court under s 204 of the 1996 Act that this decision was one for the judgment of the review officer and that in the circumstances it was not susceptible to review, and this appeal is against his order.
The consequence of the decision of the review officer, if correct in law, is that Mr Barry is not eligible for housing assistance under Part VII of the 1996 Act. Mr Barry had the misfortune to suffer a serious accident on 17 December 2006. In consequence of that, he is unable to work.
The relevant eligibility condition for social housing is in s 185(1) of the Housing Act 1996:
“A person is not eligible for assistance under this Part if he is a person from abroad who is ineligible for housing assistance.”
However, reg 6 of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations (“the AHHEE regulations”) provides:
“(1) A person who is not subject to immigration control is to be treated as a person from abroad who is ineligible for housing assistance under Part 7 of the 1996 Act if —(a) subject to paragraph (2) he is not habitually resident in the United Kingdom…
(2) The following persons are not to be treated as persons from abroad who are ineligible for housing assistance pursuant to paragraph 1(a)—(a) a worker…”
By virtue of reg 2(2) of the AHHEE, the definition of “worker” in reg 6(1) of the Immigration (European Economic Area) Regulations (“the EEA regulations”) applies. By virtue of reg 6(1)(a) of the EEA regulations, “worker” means a worker within the meaning of art 39 of the Treaty establishing the European Community. Art 39 provides:
“1. Freedom of movement for workers shall be secured within the Community between workers of the member States as regards employment, remuneration” etc.
Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the member states as regards an agreement, remuneration and other conditions of work and employment.
It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn by the Commission….”
However, Mr Barry's contention is that he falls within reg 6(2)(b)(ii) of the EEA regulations. Reg 6(2)(b)(ii) seeks to deal with the position of workers, who have become unemployed, in the following way:
“(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 …(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 employment office and…(ii) he has been unemployed for no more than six months…”
The EEA regulations, and the relevant provisions of the AHHEE, implement the rights conferred by EC Directive 2004/38 (“the Directive”). Art 7 of the Directive provides that in certain circumstances a Union citizen shall retain the status of worker for six months after becoming involuntarily unemployed. The parties have not suggested that the EEA regulations or the AHHEE regulations do not properly implement the Directive. Hence the importance of establishing whether Mr Barry was a worker for Community law purposes when he was employed at the Wimbledon championships. To resolve this appeal, I will need to consider the concept of “worker” under Community law, but first I set out the background.
Background
Mr Barry began to reside in the United Kingdom in 2004. He was employed as a security guard from August 2005 until the beginning of May 2006. He was without question a worker for Community law purposes in that period. This employment terminated because he did not have the requisite qualification to obtain a Security Industry Authority Licence, which was a newly imposed requirement. He had temporary employment as a security guard with Chubb Personnel Security Limited off and on until 29 May 2006. Southwark accept that he was employed until that time.
From early June, Mr Barry was on Jobseeker's Allowance, and he continued to receive Jobseeker's Allowance during the time that he was employed at Wimbledon. His employer was Group 4 Securicor. He was employed as a steward and the period of his employment was 24 June to 9 July 2006. He was paid £789.86 net for those two weeks' work. He was unemployed thereafter. In October, he obtained the qualification to be a security guard. On 17 December 2006, as I have explained, he had a road accident. As a result, he has had no employment since that date.
It is common ground that, for Mr Barry to have been employed in the six months last preceding his accident, he would have for some part of that period to have been a worker for the purposes of Community law. The only relevant work which could make him a worker in that period was his work at the Wimbledon tennis championships. The judge was referred to the decision of the Court of Justice of the European Communities (“the Court of Justice”) in D.M.Levin v Staatssecretaris van Justitie, Case 53/81. The judge held that it was not contentious that, for someone to be a worker for the purposes of Community law, “(a) they should perform services for and under the direction of another person, (b) in return that person must receive remuneration, although it need not be a particular level and (c) the person must perform services of some economic value that are genuine and effective and more than marginal or ancillary and the economic value must be to the employer.” (judgment, [25]).
The review officer did not consider that Mr Barry's work at Wimbledon had made him a worker for Community law purposes:
“The work at Wimbledon was a finite period of employment, that by its very nature, could not have extended past the two week period of the championship. This is casual and seasonal work that becomes available every year and requires a large workforce for that short two week event. Due to its limited duration, seasonal and casual nature, I am of the opinion that this cannot be considered as effective and genuine employment. I have also noted that you continued to be on Jobseekers Allowance during the time you worked at Wimbledon.
Your role as a steward was a finite period of employment, which could not have extended past the two weeks of the championship. This is casual and seasonal work. Every year, Wimbledon runs for a period of two weeks and employs people in various jobs. This work is not effective and genuine, but instead is marginal and ancillary.
Therefore I am satisfied that your two weeks' work as a steward at Wimbledon does not confer [on] you worker status. This means that your last employment before your accident on 17 December 2006 was more than six months before, when you were employed as a security officer. This means that your worker status was not retained under reg 6(2)(b)(ii) because you have been unemployed for more than six months at the date of your accident.”
In his judgment, the judge considered two decisions of the Court of Justice, which I shall have to consider below. He rejected the argument that the period of six months' unemployment could include periods of unemployment outside the previous six months. He also rejected the argument that the fact that Mr Barry had received Jobseeker's Allowance prevented the work from being of real economic value, though it was still a relevant factor that the review officer was entitled to take into account....
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