Secretary of State for Work and Pensions CJSA 3003 2008
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 17 December 2009 |
| Neutral Citation | 2009 UKUT 294 AAC |
| Subject Matter | European Union law |
| Respondent | ZA |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CJSA 3003 2008 |
| Appellant | Secretary of State for Work and Pensions |
Attendances:
For the Appellant and Second Respondent:
Ms Deok Joo Rhee, instructed by the Solicitor to the Department of Work and Pensions and the Treasury Solicitor
For First Respondent A:
Mr A Fullwood, instructed by Messrs Jackson and Canter, Liverpool
For First Respondent P:
Ms E Howarth, Scoop Aid, Sheffield
For First Respondent N:
Mr A Barnfield, instructed by Coventry Law Centre
Decision: The appeals by the Secretary of State are allowed. The decisions of the following tribunals involved the making of an error of law and are set aside:
The tribunal sitting at Wigan on 22 May 2008 under references 079/08/00408 and 407
The tribunal sitting at Sheffield on 30 August 2006 under references U/01/138/2006/01003 and 1551
The tribunal sitting at Coventry on 3 September 2008 under reference 032/08/00929.
In relation to appeal 032/08/00929 I remit the appeal to the First-tier Tribunal (which may be the same or differently constituted) for further findings of fact in accordance with the Directions in paragraph 71 of the Reasons
In relation to all the other appeals I substitute a decision in each case that the claimant had not by virtue of the issue of a registration certificate in respect of her employment ceased to be an “accession State worker requiring registration” and thus that her claims for income support and/or jobseeker’s allowance which are the subject of the present appeals fall to be determined on the footing that she is a “person from abroad”, with an applicable amount of £nil.
REASONS FOR DECISION
1. This appeal concerns claims for means-tested benefits made by A, P and N (“the claimants”). Each is a national of one of the so-called “A8 states”, which acceded to the European Union in 2004 as a result of the Treaty on Accession signed in Athens on 16 April 2003 (the “Accession Treaty”). A is a Lithuanian citizen and P Czech. N appears to have been treated by the Appellant as Latvian and by the Second Respondent (and was found by the First-tier Tribunal to be) Polish. Though odd, nothing turns on this for present purposes as while the Act of Accession contains separate provisions relating to each of those four states, they are so far as relevant in common form.
2. As nationals of A8 states, the claimants were subject to the Accession (Immigration and Worker Registration) Regulations 2004 (“the 2004 Regulations”). While there are features particular to their individual claims, they have one thing in common. To establish that she is entitled to means-tested benefits in respect of a period when she was not working, each must show that she had ceased to be an “accession State worker requiring registration” within regulation 2 of the 2004 Regulations. This required, in summary, 12 months of (broadly) continuous work in registered employment. Each had worked for longer than 12 months; the employment of each had been registered with the Home Office; however, this had not been done at, or, the Secretary of State argued, sufficiently soon after, its commencement. If the date that counted was when the registration process was complete and the relevant certificate issued, none of the claims could succeed. If however the registration was operative from the date of commencement of employment, then, subject to specific points relating to each claim, the door was opened to the claims succeeding.
3. A came to the UK on 4 October 2002 and appears to have been an unsuccessful asylum seeker before Lithuania acceded to the European Union. She lives with her daughter, aged 8. On 18 May 2004 she began working for a hotel. She applied for a worker registration certificate, which was issued on 3 November 2004. The certificate records the job start date as 18 May 2004. The end date of that employment is not known. On 10 February 2006, she commenced work with an agency. The employment ceased on 31 July 2007 on the stated ground of child care difficulties. A registration certificate for the agency employment was issued (as is now known but was not known below) on 10 April 2007, recording that the start date of employment was 10 February 2006. Even if (as appears to be the case) A cannot show that her hotel employment continued until 3 November 2005 so as to give her 12 certificated months on any view in respect of that employment, she could rely on her agency employment if, but only if, the certificate once issued in respect of it was retrospective in operation. Quite apart from the hotel work, she worked over 17 continuous months in the agency employment alone, but only a little over 3 months of it after the registration certificate in respect of it was issued. There was no evidence before the tribunal as to when she applied and the tribunal made no findings in this regard.
4. P came to the UK in March 2004. She obtained employment as a restaurant manager, commencing on 25 May 2004 and working continuously with the same employer until, it is said, 21 June 2005. There is evidence suggesting that she had considerable difficulty in contacting the Home Office by telephone from an early point in her employment in an attempt to make an application for registration and then, having got through, in securing the necessary forms. However, while this, if established, would be very unfortunate for P, particularly in view of the decision I have in the event reached about non-retrospectivity, it is not a matter with which I have any jurisdiction to deal in these proceedings. As is now known, on or around 15 June 2005 P submitted the forms applying for a worker registration certificate. This was issued on 27 June 2005 recording a start date of employment of 25 May 2005. As P had indicated in her application that she had started on 25 May 2004 and provided evidence in support of that date, this was a mistake. The Home Office initially misguidedly sought to defend the 2005 date on the grounds, entirely contrary to the 2004 Regulations, that to include the actual start date in the certificate was contrary to policy. It appears that by the time the certificate reached P, her employment might have ceased. This would have made the certificate invalid under the 2004 Regulations but this point had never been taken by the Secretary of State at any stage and, when I raised it at the oral hearing, Counsel for the Appellant and Second Respondent indicated that they would not seek to rely on that point. P thus worked for just under 13 months continuously, but none of it after the registration certificate in respect of it was issued. The tribunal below made no findings as to when P submitted a completed application form.
5. N came to the UK on 25 August 2005, accompanied by her teenage child. She worked as a packer for what appears to have been an agency between 5 September 2005 and 1 July 2006, until a decline in work meant she was no longer needed in that employment. As is now known, but was not known below, she signed her application form for a worker registration certificate on 3 December 2005; the application was “received in Sheffield” (i.e. at the office of the Home Office Worker Registration team) on 17 January 2006 and the certificate was issued on 19 January 2006. She had a second, wholly unregistered job between 1 March 2006 and 1 June 2006, but nothing turns on that. Between 25 July 2006 and 24 August 2007 she worked for T Ltd. As is now known, but was not known below, she signed her application form for a worker registration certificate on 25 July 2006; the application was “received in Sheffield” on 11 December 2006 and the certificate was issued on 21 December 2006 for this employment. Her post with T Ltd came to an end when she became unwell and she subsequently claimed income support on the grounds of incapacity following an operation. Quite apart from her other posts, N thus worked in her post with T Ltd alone for 13 months, but only 8 months after the registration certificate in respect of it was issued. There was no evidence before the tribunal as to when she applied and the tribunal made no findings in this regard.
6. In each case, the Secretary of State refused the claim and was overturned on appeal to the First-tier Tribunal or its predecessor, from which decisions he has appealed to the Upper Tribunal.
7. In CIS/160/2007 (and joined cases), Mr Commissioner Rowland, held that a registration certificate was not retrospective in operation. The correct approach for me to adopt in relation to such a decision is set out in R(I)12/75:
“A single Commissioner in the interest of comity and to secure certainty and avoid confusion on questions of legal principle follows the decisions of other single Commissioners…, [i]t is recognised however that a slavish...
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