RP CE 855 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 06 September 2016 |
| Neutral Citation | 2016 UKUT 422 AAC |
| Subject Matter | European Union law |
| Respondent | Secretary of State for Work and Pensions (ESA) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CE 855 2014 |
| Appellant | RP |
Attendances:
For the Appellant: Mr Tom Royston (acting pro bono), instructed by Kirklees Law Centre
For the Respondent Ms Katharine Apps, instructed by Government Legal Service
Interim Decision:
(a) The appeal is allowed to the extent that the decision of the First-tier Tribunal sitting at Doncaster on 13 September 2013 under reference SC003/13/02595 involved the making of an error of law and is set aside.
(b) Further consideration of whether the extension of the Worker Registration Scheme between 1 May 2009 and 30 April 2011 was compatible with EU law remains stayed until after the Court of Appeal shall have given its decision in SSWP v Gubeladze, or further order.
(c) The claimant was not engaged in any work that was genuine and effective between the termination of his employment with S Ltd on 11 March 2011 and the date of his claim for Employment and Support Allowance (20 October 2011).
(d) A reference is to be made to the Court of Justice of the European Union under Article 267 TFEU as to whether the derogation from Article 7(3)(a) and (b) of Directive 2004/38/EC (“the Directive”) made by regulation 5(3) of the now repealed Accession (Immigration and Worker Registration) Regulations 2004 is inconsistent with Article 7 of Regulation 1612/68 and the terms of Part 2 of Annex XII of the Treaty of Accession of the so-called A8 States.
(e) Within 28 days of the date of the letter issuing this Interim Decision, the parties shall lodge with the Upper Tribunal a draft or drafts of the reference to the Court of Justice prepared by Counsel in the case, which shall, so far as possible, be agreed between them.
REASONS FOR DECISION
1. The two principal areas of interest of the case to a wider readership beyond the parties are:
(a) its consideration of the question of whether the United Kingdom’s derogation from Article 7(3) of Directive 2004/38 by regulation 5(3) of the Accession (Immigration and Worker Registration) Regulations 2004 (“the 2004 Regulations”) was lawful (see [28] to [76]); and
(b) its consideration of what role, if any, is played by the United Nations Convention on the Rights of Persons with Disabilities in assessing whether work is “genuine and effective” for the purposes of Article 45 of the Treaty on the Functioning of the European Union (“TFEU”) (see, in particular, [13] to [17]).
However, these are by no means the only points in the case. It is convenient to start by setting out a summary of the facts.
2. The claimant is a national of Poland, who first came to the United Kingdom in 2008. On 7 July 2009 he started working for S Ltd. In October 2010 he sustained (not at work) a shoulder injury and was advised by his doctor to stop physical work. On 5 January 2011 he obtained a worker registration certificate in respect of that employment. On 11 March 2011 his employment with S Ltd was terminated because of his shoulder injury. On 20 May 2011 2011 he was awarded contribution-based jobseeker’s allowance backdated to 20 March 2011 (Ms Apps does not suggest there was any untoward delay between termination of the claimant’s employment and the commencement of jobseeker’s allowance). The only subsequent employment he had between then and the date of the claim which is the subject of the present proceedings was in July 2011 for D Ltd as a crane operative and in August 2011 for M Ltd as a packer. I say more about those two jobs below. His contribution-based JSA ran out on 22 September 2011 and he was then awarded income based JSA (“IBJSA”) to 19 October 2011. On 20 October 2011 he claimed employment and support allowance (“ESA”): it is that claim which is the subject of the present proceedings. He underwent surgery on his shoulder in the Autumn of 2011, then recuperated, but was involved in a car accident on New Year’s Eve 2011, resulting in a need for physiotherapy. By a decision dated 16 November 2012 his claim to ESA was refused, on the ground that he lacked the right to reside.
3. On 6 November 2013 the First-tier Tribunal dismissed the claimant’s appeal. On 21 May 2014 I gave permission to appeal. There was a variety of ways in which the tribunal’s findings of fact and expression of its reasons were insufficient and it is not disputed by the parties that there was an error of law so that the Upper Tribunal is entitled to remake the decision. Attempts to secure appropriately specialist representation for the claimant failed initially to produce a durable solution. More recently the case has been taken over by the claimant’s present advisers acting pro bono, and I am grateful to them, as I am also to Ms Apps for the Secretary of State, for their submissions in these proceedings.
4. The issues in this case resolved into the following:
Issue 1: was the extension of the Worker Registration Scheme from 1 May 2009 to 30 April 2011 lawful (as the First-tier Tribunal assumed)? In TG v SSWP (PC) [2015] UKUT 50 I ruled that it was not. If my view there proves to be correct, then the claimant had worker status throughout his time at S Ltd – notwithstanding his delayed application for a worker registration certificate. Thereafter (as Ms Apps accepts) he would retain that status under Article 7(3)(b) of the Directive while claiming JSA and thus have a right to reside for the purposes of his claim to ESA: see regulation 70(4)(c) of the Employment and Support Allowance Regulations 2008/794. However, TG is on appeal to the Court of Appeal as SSWP v Gubeladze, with a hearing date in February 2017. Further consideration of this issue was, and remains, stayed pending the Court of Appeal’s decision.
Issue 2A: The worker registration scheme had – even on the Secretary of State’s view in TG – terminated on 30 April 2011. An alternative route for the claimant to succeed would be if his work in Summer 2011 for D Ltd and/or M Ltd had been “genuine and effective”. If that were so, then there would be no bar to the claimant obtaining ”worker” status in consequence and, once again, retaining it down to the date of his claim for ESA and it would not be necessary to consider issue 2B. My findings of fact appear at [10] and, for the reasons at [26]-[27] I conclude that such work was not “genuine and effective”.
Issue 2B: was the United Kingdom’s derogation from Article 7(3) of Directive 2004/38 by regulation 5(3) of the 2004 Regulations lawful? If it was not, then, it was submitted, a person who by the time he needed to rely on Article 7(3) had received a worker registration certificate, even though he had not completed 12 months of certificated work under it, could rely on that Article. That would, once again, open the door to having “worker” status down to the end of employment with S Ltd and retaining it thereafter (as under Issue 1).
Issue 3: had originally been whether a proportionate assessment of the claimant’s individual circumstances was necessary. It was then accepted in the light of the decision of the CJEU in C-67/14 Alimanovic that if income-related ESA constitutes “social assistance”, there was no need for such an assessment. Accordingly, this issue became whether income-related ESA is a benefit intended to facilitate access to the labour market (cf. C-22/08 and 23/08 Vatsouras and Koupatantze. JSA is such a benefit and could be claimed at the material time by a jobseeker, such as the claimant was, and he had duly claimed it. The necessary right to reside for ESA purposes, however, excludes jobseekers. While the present case has been in the Upper Tribunal, the Court of Appeal in Alhashem v SSWP [2016] EWCA Civ 395 ruled that ESA is not a benefit intended to facilitate access to the labour market. The Upper Tribunal is bound by that decision and unless it comes to be appealed further I shall have to dismiss the appeal insofar as it is based on Issue 3.
There had originally also been challenges under the heading of Issue 4 to various matters of rationality and fairness. Mr Royston confirmed that he was not seeking to argue them as errors of law before me. He did however dispute some of the tribunal’s findings of fact and invited me to make further findings in the event that I were to find other errors of law in the tribunal’s decision. As it is common ground that there are such errors and I have proceeded to make such findings, I say no more concerning this aspect.
Issue 2A
5. The clamant says he worked at D Ltd for one day for 8 hours. As he put it (spellings corrected):
“My work role was crane operative, where I had no licence or experience on that and was not explained about the job role before I started. I was unable to hold the job because of non experience and when I asked for different job there was no[t] any other position.”
6. No payslip from that job is in evidence but his P45 is, showing pay of £32.95 (with no tax deducted). At the national minimum...
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