Jeleniewicz v Secretary of State for Work and Pensions [2008] EWCA Civ 1163 CIS 1545 2007
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 23 October 2008 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | European Union law |
| Docket Number | CIS 1545 2007 |
| Appellant | Jeleniewicz v Secretary of State for Work and Pensions [2008] EWCA Civ 1163 |
R(IS) 3/09
(Jeleniewicz v Secretary of State for Work and Pensions
[2008] EWCA Civ 1163)
|
Mr E Jacobs Commissioner 20 September 2007
CA (Mummery, Arden LJJ, Lewison J) 23 October 2008 |
CIS/1545/2007 |
Residence and presence conditions – right to reside – whether indirect right as primary carer of child dependent on father – whether sufficient resources to avoid becoming a burden on the social assistance system
The claimant was a Polish national. She entered the United Kingdom (UK) in February 2004 and worked as an au pair but was dismissed after she became pregnant. She gave birth to a daughter in August 2005. She was in receipt of income support from October 2005 until March 2006, when her entitlement was terminated following a decision that she did not have a right to reside in the UK. She appealed to an appeal tribunal, which allowed her appeal, holding that she had a right to reside in the UK under Directive 93/96/EEC (the Directive) and the Immigration (European Economic Area) Regulations 2000 (the 2000 Regulations) on the basis that she was the parent and primary carer of a child, who had a right to reside in the UK as the dependent child of the claimant’s former partner, who himself had a right to reside in the UK as a student from abroad pursuing a vocational training course in the UK. The Secretary of State appealed to the Commissioner, who set aside the tribunal’s decision, finding that the claimant had not shown that the father was a student at the material time or that the child was dependent on him. The claimant appealed to the Court of Appeal
Held, dismissing the appeal, that
1. it is for the claimant to supply the information needed to determine whether the conditions of entitlement have been met (Kerr v Department for Social Development [2004] UKHL 23 (also reported as R 1/04 (SF)) cited) and that was also true in determining whether the conditions of entitlement have ceased to be satisfied (paragraph 30);
2. it was proper and reasonable for the Commissioner to proceed on the basis that the claimant’s legal representatives had supplied him with all the information relevant to questions that he had to decide and that the submissions made to him by counsel were based on the available information and were directed to the relevant provisions of the Directive and the 2000 Regulations (paragraph 31);
3. on the evidence adduced the Commissioner was not wrong in rejecting the contention that the claimant’s child was dependent on her former partner, for which purpose material support must be shown, which, though not necessarily financial, must provide for, or contribute towards, the basic necessities of life (paragraphs 32 and 33);
4. the Commissioner had considered the proportionality of depriving the claimant’s child of her right to reside and had been entitled on the evidence to reach the conclusion that the child would require public financial support for sufficient time and in sufficient amount to be a burden on the social assistance system (paragraph 34);
5. it was unnecessary for the Commissioner or the Court to consider whether, if her child had right to reside, the claimant would also have, as primary carer, an indirect right to reside for the purposes of claiming entitlement to income support (paragraph 36).
DECISION OF THE SOCIAL SECURITY COMMISSIONER
- My decision is given under section 14(8)(a)(ii) of the Social Security Act 1998:
I SET ASIDE the decision of the Fox Court appeal tribunal, held on 29 January 2007 under reference 242/06/03235, because it is erroneous in point of law.
I make finding of fact and give the decision appropriate in the light of them.
I FIND as fact that the claimant’s daughter is not a dependent child of her father.
My DECISION is that (i) the decision awarding income support to the claimant from and including 25 October 2005 is superseded and (ii) from and including 29 March 2006 the claimant’s applicable amount for the purposes of her entitlement to income support is nil so that she is not entitled to any payment.
REASONS
- This is an appeal by the Secretary of State brought with my leave against the decision of the appeal tribunal, which allowed the claimant’s appeal against the Secretary of State’s decision.
Structure of this decision
- I first set out the facts. Then I explain why I must set aside the tribunal’s decision. Next I explain that there was a valid decision that could be the subject of an appeal to an appeal tribunal. Finally, I explain why the claimant did not have a right to reside in the United Kingdom.
The facts
The claimant’s personal circumstances
- The claimant is Polish and was born on 11 October 1972. She entered the United Kingdom on 1 February 2004. She then worked as an au pair until 3 November 2004, when she was dismissed for becoming pregnant outside marriage. Thereafter, she worked for two months as a cleaner. She had formed a relationship with a Frenchman (Mr A), who is a student and supported by his mother. The claimant and Mr A lived together from May 2005 and their daughter, Victoria, was born on 5 August 2005. After her birth, the couple’s relationship deteriorated and the claimant left with her daughter. In attempting to become reconciled, the couple lived together for short periods, but without success. The claimant has since had another child by Mr A. He sees Victoria for contact about twice a week and makes irregular financial contributions, which average about £10 a week.
- The claimant has no Worker’s Registration Certificate. She enrolled at a college to study English and Maths, but I am not sure whether that was before or after 29 March 2006.
The claimant’s benefit position
- This was unclear at the time of the hearing before the tribunal. As a result of information provided to the Commissioner, I now know what happened. The claimant claimed income support on 25 October 2005. An award was made and remained in payment until 28 March 2006. On 24 March 2006, a specialist decision-maker determined that the claimant had no right to reside in the United Kingdom. On 29 March 2006, another decision-maker decided that the claimant was no longer entitled to any income support and payment ceased with effect from that date. This followed from the previous determination that the claimant had no right to reside. As a result of that determination, her applicable amount for income support purposes was nil. The claimant’s appeal to the appeal tribunal was against the decision of 29 March 2006.
Why I must set aside the tribunal’s decision
- It is inevitable that I must set aside the tribunal’s decision because of the form in which it was given.
- The tribunal decided that (i) there was no decision under appeal, (ii) that if there was, the tribunal revised it and (iii) in either event the claimant was entitled to income support from 25 October 2005 and continuing from 24 March 2006.
- That form of decision is so hopelessly confused that I do not understand why the district chairman did not grant leave to appeal or deal with the case under section 13(2) of the Social Security Act 1998.
- Tribunals must act within their statutory jurisdiction, because that defines the limits of their power. They must act judicially, because that is their nature. They must decide the issues that arise for resolution, because that is their function. And they must make decisions that are clear, sufficiently complete and capable of being implemented, because the discharge of their duty to decide the issues judicially must be effective. The tribunal’s decision in this case does not meet those standards.
- Decisions (i) and (ii) are incompatible with each other and inconsistent with the tribunal’s duty to make a decision. It is permissible for a tribunal to make a decision in form (i) or in form (ii). It is not permissible to make a decision in form (i) and (ii) in the alternative, because that (a) effectively leaves to one of the parties (the Secretary of State) to decide which is right and (b) thereby abdicates the tribunal’s judicial responsibility to make a decision.
- Moreover, decision (iii) is incompatible with decision (i). How could the tribunal purport to make a decision on entitlement in either event – in other words even if there was no decision on which to found any appeal? That is to assume a jurisdiction that is original, not appellate. The tribunal has no original jurisdiction, except in the limited cases of referrals of applications for a departure direction or a variation in child support.
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