RJ CSJSA 563 2010

JurisdictionUK Non-devolved
JudgeJudge A J Gamble
Judgment Date01 December 2011
Neutral Citation2011 UKUT 477 AAC
Subject MatterEuropean Union law
RespondentSecretary of State for Work and Pensions
CourtUpper Tribunal (Administrative Appeals Chamber)
Docket NumberCSJSA 563 2010
AppellantRJ
A4 Minute

[2012] AACR 28

(RJ v Secretary of State for Work and Pensions (JSA)

[2011] UKUT 477 (AAC))

Judge Gamble CSJSA/563/2010

1 December 2011

European Union law – right to reside – whether claimant was self-employed at date of claim for jobseeker’s allowance for the purposes of Council Directive No. 2004/38/EC

At the time of his claim, the claimant was a Polish national and a citizen of the European Union. He applied for income-based jobseeker’s allowance. Regulation 85A(4) of the Jobseekers Allowance Regulations 1996 provides, inter alia, that a claimant is not a person from abroad if he is a self-employed person for the purpose of Council Directive No. 2004/38/EC. In 2009, a decision-maker decided that his applicable amount for the purpose of his claim was nil as he was a person from abroad because he did not have a right to reside and was therefore not habitually resident in the UK. The First-tier Tribunal refused his appeal. The claimant appealed to the Upper Tribunal.

Held, allowing the appeal, that:

  1. the decision of the First-tier Tribunal was erroneous in law because it had failed to make sufficient findings to determine whether the claimant was self-employed at the time of his claim. Being self-employed and actually working as such were not the same thing. Careful fact-finding on the issue of self-employment was required. (Secretary of State for Work and Pensions v JS [2010] UKUT 240 (AAC) and Secretary of State for Work and Pensions v AL [2010] UKUT 451 (AAC) followed) (paragraph 9)
  2. Article 7.3(b) and (c) applied only to “workers” and not to “self-employed persons”. The claimant could therefore only succeed in his appeal by establishing that he was self-employed at the date of claim (Tilianu v Secretary of State for Work and Pensions [2010] EWCA Civ 1397 applied) (paragraph 9)
  3. the decision of the Supreme Court in Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11; [2011] AACR 34 established that discrimination on the grounds of nationality was justified because the right to reside test had the legitimate purpose of ensuring that a claimant had achieved economic or social integration in the United Kingdom as a pre-condition of entitlement to benefit and that that justification was relevant, sufficient and independent of the issue of nationality. It was noted that the European Commission had indicated that the decision in Patmalniece contravened European Law. However no reference had been made to the European Court of Justice and accordingly the decision of the Supreme Court remained a binding authority (paragraph 12)
  4. the decision of the Court of Appeal in Tilianu v Secretary of State for Work and Pensions [2010] EWCA Civ 1397 established that Article 7.3(b) and (c) applies only to “workers” but not “self-employed persons”. The proposition that this decision should not be followed in Scotland was rejected. Judges of the Upper Tribunal sitting in Scotland should ordinarily expect to follow decisions of the Court of Appeal where the point before them is indistinguishable from the issue before the Court. Furthermore an identical issue had previously been determined by a judge of the Upper Tribunal in Secretary of State for Work and Pensions v RK [2009] UKUT 209 (AAC) (paragraph 13);
  5. the judge declined to make a reference to the Court of Justice of the European Union (paragraph 16).

The judge remitted the case to a new tribunal for redetermination in accordance with the directions in paragraph 18.

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Mr A Weiss, the AIRE Centre, along with Mr J Melvin and Mr S Douglas, Coatbridge Citizens Advice Bureau, appeared for the appellant. The claimant did not attend any of the oral hearings personally.

Mr S Collins QC, instructed by the Solicitor to the Advocate General, appeared for the respondent (Secretary of State for Work and Pensions).

The claimant’s appeal is allowed. The decision of the Hamilton First-tier Tribunal of 30 June 2010 is set aside.

The case is remitted to the First-tier Tribunal (Social Entitlement Chamber) for redetermination in accordance with the directions in [18] of the Reasons.

REASONS FOR DECISION

1. The claimant is a thirty two year old man. He is a Polish national and accordingly a citizen of the European Union. On 8 May 2009 he claimed jobseeker’s allowance. In response, a decision-maker, on 31 May 2009 held that the claimant’s applicable amount for the purpose of his claim to income-based jobseeker’s allowance was nil as he was “a person from abroad” because he did not have a right to reside and accordingly was not habitually resident in the United Kingdom.

2. The claimant appealed against that decision. It was then reconsidered but left unaltered. The appeal proceeded. It was adjourned on 10 November 2009 and 1 April 2010. It was heard and determined on 30 June 2010. On that occasion the tribunal refused it.

3. The claimant now appeals with the permission of the district tribunal judge.

4. The registrar granted a hearing at the request of the claimant’s representative. It took place on 11 March 2011. On that date, after oral argument, I adjourned it for the lodging of further written submissions by both parties. After those were lodged, I directed a resumed hearing. That was scheduled for 3 August 2011 but had to be postponed due to illness on the part of the Secretary of State’s counsel. It was rescheduled for 20 September 2011 and took place on that date. It proved impossible on that occasion to complete the oral arguments so the hearing was continued until 11 November 2011 when those arguments were concluded. I am grateful to the party’s representatives for their research and their written and oral submissions in a complex appeal.

5. The legislative background to the decision of the decision-maker, upheld by the tribunal, is as follows:

(a) The assessment of entitlement to income-based jobseeker’s allowance is by way of the calculation of a claimant’s applicable amount under sections 1(4) and 3 of the Jobseekers Act 1995. The applicable amounts are set by regulations made under section 4(5) of that Act. Section 4(12) of that Act permits the fixing of an applicable amount of nil by such regulations.

(b) An applicable amount of nil is fixed for “persons from abroad” by paragraph 14 of Schedule 5 to the Jobseeker’s Allowance Regulations 1996 (SI 1996/207), made under the above primary legislation.

(c) Regulation 85(4) of the above regulations inter alia provides:

“Person from abroad has the meaning given in regulation 85A.”

(d) Regulation 85A provides, so far as relevant, as follows:

85A. – (1) ‘Person from abroad’ means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

(2) No claimant 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 Irelands, 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; or

(b) Article 6 of Council Directive No.2004/38/EC.

(4) A claimant is not a person from abroad if he is –

(a) a worker for the purposes of Council Directive No. 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-paragraph (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;

(f) a person who is treated as a worker for the purpose of the definition of ‘qualified person’ in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to –

(i) regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 (application of the 2006 Regulations in relation to a national of the...

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