CIS_1042_2008 [2008] UKSSCSC CIS_1042_2008 (09 June 2008)

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Cite as: [2008] UKSSCSC CIS_1042_2008

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[2008] UKSSCSC CIS_1042_2008 (09 June 2008)


     
    DECISION OF THE SOCIAL SECURITY COMMISSIONER
  1. My decision is given under section 14(8)(a)(i) of the Social Security Act 1998 and regulation 28(2) of the Social Security Commissioners (Procedure) Regulations 1999:

    2. I SET ASIDE the decision of the Oxford appeal tribunal, held on 18 December 2007 under reference 048/07/01691, because it is erroneous in point of law.
    I give the decision that the appeal tribunal should have given, with the consent of the parties.
    My DECISION is the claimant the claimant had a right to reside in respect of her claim for income support made on 15 May 2007. The Secretary of State will now investigate and determine the other conditions of entitlement.

    The appeal to the Commissioner

  2. This is an appeal to a Commissioner against the decision of the appeal tribunal. On giving directions on the appeal, I invited the Secretary of State to suggest any decision that I might substitute for that given by the appeal tribunal. The Secretary of State's representative has suggested a decision. The claimant has agreed that I may give that decision.

  3. As the decision is given with the consent of the parties, I am absolved of the duty to give reasons by virtue of regulation 28(2) of the Social Security Commissioners (Procedure) Regulations 1999. However, I will explain briefly why the decision is the appropriate one in this case.

  4. The claimant is a citizen of the Slovak republic, which acceded to the EU in 2004. She came to the United Kingdom in 1995 at first as an au pair, then as a student and finally as a self-employed person. She worked as a fitness instructor on a self-employed basis until three week before the birth of her child on 14 December 2006. She claimed income support on 15 May 2007. The Secretary of State refused the claim on the ground that the claimant did not have a right to reside. The claimant exercised her right of appeal. Unfortunately, the tribunal was confused in the application of the Accession (Immigration and Worker Registration) Regulations 2004. It decided that the claimant was required to register her work under those Regulations and, as she had not done so, she did not have a right to reside under the Immigration (European Economic Area) Regulations 2006.

  5. As the Secretary of State has conceded, the tribunal went wrong in law, because the 2004 Regulations do not apply to the self-employed. The Secretary of State has also conceded that, as the claimant intended to resume her self-employment after her maternity period, she remained a self-employed person under regulation 21AA(4)(b) of the Income Support (General) Regulations 1987, saying: 'I can see no difference in treatment that would be afforded to an EEA national who was an employed person intending to return to work after maternity leave to a self-employed person.'

    6. Signed on original
    on 09 June 2008    		 Edward Jacobs
    Commissioner

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URL: http://www.bailii.org/uk/cases/UKSSCSC/2008/CIS_1042_2008.html