RP v Secretary of State for Work and Pensions (ESA)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ward |
| Neutral Citation | [2016] UKUT 422 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | European Union law,European Union law - free movement,Ward,C |
| Date | 06 September 2016 |
| Published date | 01 December 2016 |
RP v SSWP (ESA) (Interim Decision)
[2016] UKUT 0422 (AAC)
CE/855/2014
1
IN THE UPPER TRIBUNAL Case No CE/855/2014
ADMINISTRATIVE APPEALS CHAMBER
Before UPPER TRIBUNAL JUDGE WARD
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now repealed Accession (Immigration and Worker Registration) Regulations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
RP v SSWP (ESA) (Interim Decision)
[2016] UKUT 0422 (AAC)
CE/855/2014
2
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:
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...the earning capacity of the individual: see Ninni-Orasche [2004] 1 CMLR at paragraph 24 and RP –v- SSWP (ESA) (Interim Decision) [2016] UKUT 0422 (AAC). And it applies equally in respect of the derivative right to reside based on the child of a “worker” in education under article 10 of Regu......
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