CIS_3960_2007
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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2008] UKSSCSC CIS_3960_2007 (14 May 2008) URL: http://www.bailii.org/uk/cases/UKSSCSC/2008/CIS_3960_2007.html Cite as: [2008] UKSSCSC CIS_3960_2007 |
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[2008] UKSSCSC CIS_3960_2007 (14 May 2008)
I SET ASIDE the decision of the Manchester appeal tribunal, held on 3 August 2007 under reference 946/07/02007, because it is erroneous in point of law.
I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.
My DECISION is that, on her claim for income support made on 20 November 2006 and refused on 29 January 2007, the claimant was a person from abroad such that her applicable amount was nil, conferring no entitlement to payment of income support.
The claimant's personal circumstances
The claim for benefit
The appeal to the appeal tribunal
• First, the claimant had been a worker and had retained worker status by reason of embarking on vocational training. As she had given up work involuntarily as a result of pressure of circumstances, that training did not have to relate to her previous employment.
• Second, she had a right to reside under the decision of the European Court of Justice in Baumbast and R v Secretary of State for the Home Department Case C-413/99 [2002] ECR I-7091.
• Third, it would be disproportionate to hold that the claimant did not have a right to reside, as she had worked for about 18 months, was forced to give up work on account of her child's disability, intended to return to work when he attended full-time school, and had begun a vocational course to help her find work.
The appeal to the Commissioner
Income support legislation
'(1) A person in Great Britain is entitled to income support if-
…
(b) he has no income or his income does not exceed the applicable amount.'
'(1) The applicable amount, in relation to any income-related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit.
(2) The power to prescribe applicable amounts conferred by subsection (1) above includes power to prescribe nil as an applicable amount.'
'Special cases: supplemental – persons from abroad
21AA.—(1) "Person from abroad" means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
(2) No claimant shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3).
(3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following—
(a) regulation 13 of the Immigration (European Economic Area) Regulations 2006;
(b) regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the claimant is—
(i) a jobseeker for the purpose of the definition of "qualified person" in regulation 6(1) of those Regulations, or
(ii) a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker;
(c) Article 6 of Council Directive No. 2004/38/EC; or
(d) Article 39 of the Treaty establishing the European Community (in a case where the claimant is a person seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland).
(4) A claimant is not a person from abroad if he is—
(a) a worker for the purposes of Council Directive No. 2004/38/EC;
(b) a self-employed person for the purposes of that Directive;
(c) a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive;
(d) a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive;
(e) a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive;
(f) a person who is treated as a worker for the purpose of the definition of "qualified person" in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to—
(i) regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 (application of the 2006 Regulations in relation to a national of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia or the Slovak Republic who is an "accession State worker requiring registration"), or
(ii) regulation 6 of the Accession (Immigration and Worker Authorisation) Regulations 2006 (right of residence of a Bulgarian or Romanian who is an "accession State national subject to worker authorisation");
(g) a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;
(h) a person who has exceptional leave to enter or remain in the United Kingdom granted outside the rules made under section 3(2) of the Immigration Act 1971;
(hh) a person who has humanitarian protection granted under those rules;
(i) a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act and who is in the United Kingdom as a result of his deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom; or
(j) a person in Great Britain who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.'
• Claimants who come within regulation 21AA(4) are not persons from abroad. They will all have the right to reside and do not have to be habitually resident.
• In order to be entitled to income support, anyone else must be habitually resident (regulation 21AA(1)). If they are not, they are persons from abroad, whose applicable amount is nil.
• In order to be habitually resident, they must have a right to reside (regulation 21AA(2)). If they do not, they are persons from abroad, whose applicable amount is nil.
• But persons who come within regulation 21AA(3) cannot have a right to reside and cannot, therefore, be habitually resident, As a result, they are persons from abroad, whose applicable amount is nil.
An assessment of the claimant's arguments
The first argument
'(3) For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:
…
(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.'
The second argument
The third argument
Disposal
Signed on original on 14 May 2008 |
Edward Jacobs Commissioner |