Secretary of State for Work and Pensions v MB and others (JSA)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ward |
| Neutral Citation | [2016] UKUT 372 (AAC) |
| Subject Matter | European Union law,Jobseekers allowance,European Union law - free movement,Jobseekers allowance - other,Ward,C |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 05 August 2016 |
[2017] AACR 6
(SSWP v MB)
1
[2017] AACR 6
(Secretary of State for Work and Pensions v MB & others (JSA)
[2016] UKUT 372 (AAC))
Judge Ward CJSA/446/2015 & CJSA/1960/2015
5 August 2016 CJSA/827/2015 & CJSA/2042/2015
European Union law – free movement of workers – application of Genuine Prospects of
Work test – compelling evidence requirement
The Secretary of State decided, following Genuine Prospects of Work (GPOW) interviews, that all four claimants
were no longer entitled to jobseeker’s allowance (JSA) as they had failed to provide compelling evidence that they
had a genuine chance of obtaining employment. The Secretary of State was the appellant in thr ee cases where the
First-tier Tribunal (F-tT) had upheld th e claimant’s appeals and a claimant the a ppellant in the remaining case. The
main issue before the Upper Tribunal was wheth er the claimants had provided compelling evidence of a genuine
chance of being engaged in work, thereby r etaining their status as jobseekers under the Immigration (European
Economic Area) Regulations 2006 (as amended). In addition two claimants argued that they had alternative grounds.
Held, allowing the appeals, that:
1. the only civil standard of proof was that the fact in issue had more probably occurred than not, but in
deciding that question regard should be had, to whatever extent appropriate, to inherent probabilities: Re B
(Children) [2008] UKHL 35 (paragraph 23);
2. to satisfy the GPOW test a person had to have a chance of being engaged which was founded on something
objective and offered real prospects of success in obtaining work (that was genuine and effective) within a
reasonable time: Antonissen, C-292/89, EU:C:1991:80. A tribunal would need to take a period of six months (or
longer) of unsuccessful jobseeking into account, along with other factors, in assessing whether a person did indeed
have genuine chances. The “compelling evidence” r equirement could not go further th an that without undermining
the Antonissen test. Th e argument that r egard should only be had to qualifications possessed by the claimant either
on entering the UK or, alternatively, at the date of the decision under appeal was rejected (paragraphs 42 to 57);
3. when deciding an appeal, tribunals should not limit themselves to considering whether a claimant met the
Department for Work and Pensions’ own guidance, as its narrow focus might mean that a claimant was not alerted
to the need to raise other issues which might bear on their chances of getting a job (paragraphs 61);
4. the judge rejected the alternative grounds argued by two of the claimants (paragraphs 132 to 146).
The judge set a side the decisions of th e F-tT in all four cases, re-making the decision in one case to the effect that
the claimant was not entitled to JSA, in another staying a decision pending a Court of Appeal judgment in a related
case an d r emitting the appeals in the remaining two cases to differently constituted tribunals to be re-decided in
accordance with his directions.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Ms Julia Smyth, instructed by Government Legal Service, appeared for the Secretary of State.
Mr Michael Spencer and Mr Martyn Williams, both of Child Poverty Action Group, appeared
for the claimants MB, AM and VA.
Ms Mary Shone, Bolton Citizens Advice Bureau, appeared for the claimant AB.
Decisions:
All
[2017] AACR 6
(SSWP v MB)
2
I abridge from three months to six weeks the time limit in rule 44(3) of the Upper
Tribunal’s Rules within which any application for permission to appeal is to be made
CJSA/2042/2015
The appeal by the Secretary of State is allowed. The decision of the First-tier Tribunal sitting at
Wolverhampton on 10 February 2015 under reference SC053/14/01022 involved the making of
an error of law and is set aside. I re-make the decision in the following terms:
MB’s appeal against the decision of 14 November 2014 is dismissed. She did not succeed
in demonstrating in accordance with regulation 6 of the Immigration (European
Economic Area) Regulations 2006 that she had a “genuine chance of being engaged”, nor
has she succeeded in demonstrating that she was a dependant family member in the
ascending line of her daughter, SA, at the material time. Consequently she fell to be
treated as a “person from abroad” for the purposes of her claim to jobseeker’s allowance
on and from 14 November 2014.
CJSA/1960/2015 (Interim decision)
The appeal by the Secretary of State is allowed to the following extent. The decision of the First-
tier Tribunal sitting at Bolton on 17 April 2015 under reference SC122/15/00145 involved the
making of an error of law and is set aside. I re-make the decision in the following terms:
Inasmuch as AB seeks to contend that she had a genuine prospect of being engaged as at
8 November 2014, her appeal against the Secretary of State’s decision of that date fails.
I find as fact that AB was born in 1995. Her mother, JB, was continuously employed
between 1 May 2009 and 9 August 2013, in employment which at no point was
registered under the Worker Registration Scheme. I further find that JB was in receipt of
jobseeker’s allowance between 24 September 2013 and 16 February 2014. At all material
times, AB lived with her parents. I record that the Secretary of State does not seek to
allege there was undue delay between JB’s employment ceasing and when she claimed
jobseeker’s allowance.
I stay the question of whether the above facts and concessions are sufficient to confer on
AB a permanent right of residence as a family member of her mother, JB, until after the
Court of Appeal shall have given judgment in Secretary of State for Work and Pensions v
Gubeladze, in which a hearing is due in February 2017, or further order.
AB’s claim to be entitled to rely on rights derived from C-507/12 Saint Prix from
1 November 2014 is rejected.
CJSA/446/2016
The appeal by the Secretary of State is allowed. The decision of the First-tier Tribunal sitting at
Northampton on 8 October 2015 under reference SC316/15/00513 involved the making of an
error of law and is set aside. The case is referred to the First-tier Tribunal (Social Entitlement
Chamber) for rehearing before a differently constituted tribunal in accordance with this decision.
CJSA/827/2016
[2017] AACR 6
(SSWP v MB)
3
The appeal by the claimant is allowed. The decision of the First-tier Tribunal sitting at Fox Court
on 5 November 2015 (the date on the statement of reasons is in error) under reference
SC242/15/05153 involved the making of an error of law and is set aside. The case is referred to
the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted
tribunal in accordance with this decision.
REASONS FOR DECISION
1. These cases, which are lead cases behind which a significant number of others are stayed,
raise a number of issues concerning the so-called Genuine Prospects of Work (“GPOW”) test.
The phrase “genuine prospects of work” does not appear in legislation or case law. The relevant
test is correctly expressed as “a genuine chance of being engaged”, or sometimes “genuine
chances”: It has not been suggested that the difference between the singular and plural forms is
significant and I do not consider that it is. Whilst a jobseeker’s chances of being engaged have
always been relevant under the definition of “jobseeker” under the Immigration (European
Economic Area) Regulations (SI 2006/1003) (“the 2006 Regulations”), the point has arisen more
prominently following amendments made to the 2006 Regulations by SIs 2013/3032, 2014/1451
and 2014/2761 (together “the GPOW Regulations”), which required, inter alia, “compelling
evidence” to be provided. That expression is not defined.
2. In CJSA/2042/2015, the claimant MB had appealed against the Department for Work and
Pensions’ (DWP) decision dated 12 November 2014. A summary of the facts can be found at
[81]–[87] below. On 10 February 2015 the First-tier Tribunal held that she had met the
compelling evidence requirement and allowed her appeal. The Secretary of State appeals, with
the permission of the Upper Tribunal. Mr Spencer conceded that the tribunal’s decision was in
error of law but submits that it should be re-made in MB’s favour on the basis that she did have a
genuine chance of being engaged or in the alternative was “a dependant direct relative in the
ascending line” of her daughter, who was a “worker” at the material time, with the consequence
that MB enjoyed a right to reside.
3. In CJSA/1960/2015 the claimant AB had appealed against a decision dated 8 November
2014. A summary of the facts is at [96] below. On 17 April 2015 the First-tier Tribunal allowed
her appeal on the alternative bases (a) that AB had established a permanent right of residence,
based substantially on having been a family member of her parents, and (b) that she satisfied the
compelling evidence requirement. The Secretary of State sought to appeal against (a).
Subsequently a challenge was added to ground (b) also. The Upper Tribunal gave permission to
appeal on both grounds. Ms Shone accepts that, as regards (a), the decision of the First-tier
Tribunal was in error of law. She invites the Upper Tribunal, if it were to set aside the decision
of the First-tier Tribunal, to re-make the decision in AB’s favour on alternative bases, discussed
below.
4. In CJSA/446/2016 the claimant AM had appealed against a decision dated 15 June 2015.
A summary of the facts is at [105]–[106] below. On 8 October 2015 the First-tier Tribunal found
that he met the test in Antonissen, C-292/89, EU:C:1991:80 for being a jobseeker and allowed
his appeal. The Secretary of State appealed with permission of a judge of the First-tier Tribunal.
5. In CJSA/827/2016 the claimant VA had appealed against a decision dated 7 May 2015. A
summary of the facts is at [118]–[120] below. On 5 November 2015 the First-tier Tribunal found
To continue reading
Request your trial
2 cases
-
DD v Her Majesty’s Revenue and Customs and Secretary of State for Work and Pensions (CB)
...for Work and Pensions (see further EP v SSWP (JSA) [2016] UKUT 445 (AAC), particularly at paragraph [25]) and that SSWP v MB (JSA) [2016] UKUT 372 (AAC); [2017] AACR 6 sets out the law on how this test is to be The issue with which this appeal is concerned, though now to a greatly diminishe......
-
Secretary of State for Work and Pensions v AR (rule 17) (JSA)
...of the legislation implementing the GPOW test. The appeal was then stayed pending the Upper Tribunal’s decision in SSWP v MB [2016] UKUT 372(AAC). 6. Following the decision in MB, I observed when giving directions “this case (in addition to more general issues regarding the GPOW test) raise......