Decision No:  23/85(SUPP BEN)

SUPPLEMENTARY BENEFITS (NORTHERN IRELAND) ORDER 1977

Appeal from decision of the Social Security Appeal Tribunal
on a question of law

DECISION OF THE COMMISSIONER

1.	In this case the claimant appeals against the decision of Belfast Social Security Appeal Tribunal given on 4 December 1984, whereby it was held that she was not entitled to a supplementary allowance.

2.	Briefly, the background to the case is that the claimant, who is now aged 28 and a native of Dublin, first applied for supplementary benefit in September 1983.  She stated that she had previously been working as a library assistant for Dublin County Council and that she had left her job and come to Northern Ireland to seek alternative employment.  Supplementary benefit was disallowed in September 1983 because the claimant did not satisfy the residence conditions and there was no appeal from this decision.

	In October 1984 the claimant again applied for supplementary benefit.  She stated that she had been attending Queen’s University Belfast until May 1984 when she went back to Dublin and there claimed unemployment benefit.  She had later returned to Belfast at the beginning of October 1984, again to look for work.  In November 1984 she further stated that she was doing voluntary work for the Citizens Advice Bureau.  Once more the Adjudication Officer disallowed the claim because the claimant did not satisfy the residence conditions.  It is from this disallowance, which was upheld by the Appeal Tribunal on 4 December 1984, that the claimant now appeals.

3.	In reaching this decision that the claimant was not entitled to supplementary benefit, the Adjudication Officer had regard to the provisions of Article 8 of the Supplementary Benefits (Northern Ireland) Order 1977, which is in the following terms:-

		“8.	A person shall not be entitled to supplementary benefit if he has not (except as may be otherwise prescribed by regulations made by the Department under this Article) been resident in the United Kingdom for a period of five years immediately preceding the date on which his claim for supplementary benefit was made.”

	The Adjudication Officer further considered the provisions of regulation 13 of the Conditions of Entitlement Regulations none of which assist the claimant in this instance.

4.	The grounds of the claimant’s appeal to the Appeal Tribunal were stated as follows:-

		“As I am a citizen of the Republic of Ireland which is a Member State of the EEC that I should be entitled to supplementary benefit in Northern Ireland.”

	A similar argument was advanced to the Appeal Tribunal by the claimant’s representative at the hearing on 4 December 1984.  The facts as stated in the Adjudication Officer’s submission to the Tribunal were admitted it was accepted that the regulations were against the claim; but it was argued that the claimant was a citizen of the Republic of Ireland and, as such, should be entitled to supplementary benefit.  It should be noted that there was no suggestion that entitlement to benefit depended upon whether or not the claimant was a “worker” as defined by EEC law.  The Appeal Tribunal dismissed the appeal; holding that the claimant was not entitled to supplementary allowance as she did not satisfy the residence conditions.  In the “Reasons for decision” reference was made to Article 8, Supplementary Benefits (Northern Ireland) Order 1977 and regulation 13, Supplementary Benefit (Conditions of Entitlement) Regulations (Northern Ireland) 1981.

5.	In her application for leave to appeal to the Commissioner the claimant stated her grounds as follows:-

		“1.	Article 8 of the Supplementary Benefits (Northern Ireland) Order 1977 contravenes and is inconsistent with the directly applicable provisions of EEC law.

		 2.	Insofar as Article 8 is inconsistent with the said provisions those provisions should be given effect to and take precedence over the said Article 8.

		 3.	Article 8 contravenes the provisions of the Treaty establishing the European Economic Community in particular those provisions governing the free movement of workers.

		 4.	Article 8 also contravenes the European Convention of Human Rights and the Northern Ireland Constitution Act of 1973 insofar as the said provision discriminated on the grounds of nationality and race.”

6.	In due course I granted leave to appeal and requested further details of the grounds on which the claimant relied.  In the Reply and Submission dated 3 May 1986, Mr Treacy, Counsel for the claimant, identified Article 7 of the regulation 1612/68 and Article 7 of the EEC Treaty as the provisions of EEC law which were said to be contravened by and inconsistent with Article 8 of the Supplementary Benefits (Northern Ireland) Order 1977.  It was indicated that the claimant would no longer be relying upon any alleged contravention of the European Convention on Human Rights or the provisions of the Northern Ireland Constitution Act 1973.  Mr Treacy’s submission sets out in detail the points advanced on the claimant’s behalf.  Briefly they are as follows:-

		“(a)	The provisions of any EEC regulation have the force of law in this country and are superior to conflicting provisions of domestic law; see Collins European Community Law in the UK, pages 43/50 and Great Britain Commissioner’s Decision R(A) 2/78.

		 (b)	A worker who is a national of a Member State, shall, in the territory of another Member State, enjoy the same social advantages as national workers of that other Member State:- Council Regulation No: 1612/68, Article 7, paragraphs 1(1) and (2).

		 (c)	Supplementary benefit is a social advantage:- see cases of Hoeckx and Scrivner.

		 (d)	The claimant is a worker within the meaning of Regulation 1612/68 Article 7(2):- see Great Britain Decision R(SB) 2/85, the Hoeckx and Scrivner cases and Hoekstra (Nee Unger) –v– Bestuur, (1964) ECR 177.

		 (e)	Article 8 of the Supplementary Benefits (Northern Ireland) Order 1977 contravenes the provisions of Article 7(2) of Regulation 1612/68 in that it constitutes unlawful discrimination on the grounds of nationality.  Although the 5-year residence requirement applies equally to nationals of all Member States the practical effect of Article 8 when read together with regulation 13 of the Conditions of Entitlement Regulations is to render it much more difficult for nationals of other Member States than for UK nationals to qualify for supplementary benefit:- see the Hoeckx case, the Palermo case 1979 ECR 2645, and Great Britain Decision R(A) 2/78.

		 (f)	For the foregoing reasons the Appeal Tribunal erred in law in failing to consider and apply the provisions of Article 7(2) of regulation 1612/68 which takes precedence over the provisions of Article 8 of the Supplementary Benefits (Northern Ireland) Order 1977 upon which the decision to disallow the claim was based.”

7.	I held an oral hearing on 24 March 1987 at which the claimant was represented by Mr Treacy, instructed by Mr John O’Neill, Solicitor, of Belfast Law Centre, and the Adjudication Officer by Mr Noel Kelly, Solicitor.

8.	Mr Treacy stated that he had little to add to his written submission.  In response to enquiry from me he agreed that his argument depended upon whether or not, at the date of the claim, the claimant was a worker for the purposes of EEC law.  He suggested that the 5 year residence condition constituted direct discrimination on the grounds of nationality.  If that was not so, it certainly amounted to indirect discrimination and called for a teleological approach to the subject.

	Mr Kelly accepted that, for the purposes of EEC law, supplementary benefit should be regarded as a social advantage and was therefore subject to the prohibition against discrimination on the grounds of nationality which was set out in Regulation 1612/68.  He further acknowledged that the provisions of Article 8 of the Supplementary Benefits (Northern Ireland) Order 1977 might well constitute discrimination on the grounds of nationality; but he submitted that this question was not relevant because the claimant was not a worker within the meaning of EEC law and therefore was not assisted by the provisions of Regulation 1612/68.  In support of this contention Mr Kelly referred to Articles 48 and 49 of the EEC Treaty and to Article 7 of Council Regulation 1612/68.  He also reviewed a number of cases.  Some were concerned with the discriminatory effect of a residence qualification and others dealt with the meaning of the term “worker”, particularly in relation to persons performing poorly paid or unpaid work.  Mr Kelly submitted that the conclusion to be drawn from all the decided cases was that, on the admitted facts, the claimant in this instance was not a “worker” for the purposes of EEC law.

8.	The arguments advanced by Mr Treacy and Mr Kelly made it clear that the critical, and indeed the only, question which required consideration was whether the claimant was a “worker” for the purposes of EEC law.  If she was, then the Appeal Tribunal had erred in law in applying a residence condition which contravened the provisions of Council Regulation 1612/68.  If on the other hand the claimant was not a worker, there was no question of any contravention of EEC law and the decision of the Appeal Tribunal was correct.  The question of whether or not the claimant was a worker for the purposes of EEC law had not been raised at any stage of the proceedings below Commissioner level and both sides now submitted that it should be answered in their favour.  Mr Treacy further submitted that if I was not prepared to hold that the claimant was a “worker”, the question should be referred to the European Court of Justice for a preliminary ruling.  There were, he said, strong arguments in support of the interpretation for which he contended and now was the time to seek an authoritative ruling on the matter.

9.	The Adjudication Officer had not provided a written submission prior to the oral hearing and Mr Treacy was therefore obliged to respond at short notice to the arguments advanced by Mr Kelly.  I felt that this might have placed the claimant at a disadvantage and I therefore directed that a full written submission on the Adjudication Officer’s behalf should be prepared.  In due course I received the submission dated 7 April 1987 and a copy was sent to the claimant’s representative.  On 21 May 1987 a letter was received stating that Mr Treacy was satisfied that there was no need for further submissions on the claimant’s behalf and that a further hearing was not required.

10.	At that stage of the proceedings I formed the view that a reference to the European Court of Justice would be desirable and I directed that the parties be asked to agree the terms of the reference, including a statement of the facts and the question or questions on which the ruling of the Court was sought.  The response to this request was somewhat delayed and in the meantime the European Court of Justice delivered judgment in case 316/85 (the Lebon case) in which the Court considered the meaning of the term “worker” in the context of Regulation 1612/68.  I felt that this judgment provided sufficient guidance to enable me to decide whether or not the claimant in the instant case was a “worker” without referring the matter to the European Court of Justice.  I accordingly directed that the parties be asked for their views on the matter.  By letter dated 7 September 1987 Mr Kelly stated that the Adjudication Officer was of the opinion that there was now no need to refer the question to the European Court of Justice.  On behalf of the claimant, Mr O’Neill took a somewhat different line.  In his letter of 18 November 1987 he did not dispute the suggestion that it was no longer necessary to refer the question of whether or not the claimant was a worker to the European Court.  He submitted, however, that it was for the Adjudication Officer to consider whether on the facts the claimant was at the material time a “worker”.  He did not accept that the Lebon judgment disposed of the issues in the case and expressed the opinion that the Adjudication Officer should now consider the case in the light of the concessions which were made on the appeal.

11.	I am grateful for the assistance which I have received in this case from Mr Treacy, Mr Kelly and Mr O’Neill.  I have considered all the arguments advanced and the conclusion which I have reached is that the Appeal Tribunal did not err in law.  I accept that the outcome of the appeal depends solely upon whether or not, for the purposes of Council Regulation 1612/68 the claimant is a “worker”.  The facts which are set out in paragraph 2 above are not in dispute.  This was expressly acknowledged at the hearing before the Appeal Tribunal and again at the oral hearing of this appeal on 24 March 1987.  At the material time the claimant was a national of a Member State who had come to Northern Ireland to look for work.  She had never been gainfully employed in Northern Ireland and did not hold an offer of employment.  In the Lebon case referred to in paragraph 10 above, the European Court of Justice held that the equality of treatment in relation to social and fiscal advantages conferred by Regulation 1612/68 enured only for the benefit of workers and not nationals of Member States who moved to look for employment.  The European Court of Justice has also decided in the cases of Levin (1982) CMLR 454, Kempf (The Times, 6 June 1986) and Lawrie-Blum (The Times, 3 July 1986) that to qualify as a “worker” the individual in question must be in genuine and effective paid employment, which was neither marginal nor ancillary.  In the light of these decisions I am of the opinion that the claimant was not a “worker” for the purposes of EEC law and that it is not necessary for me to refer any question on that subject to the European Court of Justice.  If at the material time the claimant was not a “worker” within the meaning of the relevant EEC provisions there can be no question of any contravention of EEC law.  In these circumstances I cannot see any justification for the suggestion that the case be referred back to the Adjudication Officer.  It is right to say that it has been accepted by the Adjudication Officer’s representative that, in relation to “workers”, Article 8 of the Supplementary Benefits (Northern Ireland) Order 1977 conflicts with the provisions of Council Regulation 1612/68 in that it imposes a residence condition which constitutes discrimination against non-nationals.  However, that is not a matter which arises in the present case and it is not a point which required consideration either by the Adjudication Officer or the Appeal Tribunal.  It was not until the case reached Commissioner level that it was asserted on the claimant’s behalf that she was a “worker” for the purposes of EEC law and on the agreed facts I have now decided as a question of law that she was not.  In my opinion that effectively disposes of any submission that the Appeal Tribunal erred in law and I accordingly dismiss this appeal.

	R R CHAMBERS
	
	CHIEF COMMISSIONER

	5 January 1988