Sorry for the length of this - I got a bit carried away.
Commissioner Rowland in CH/3314/2005 and CIS/3315/2005 has made some important points relating to right to reside.
Decision available at:
http://www.rightsnet.org.uk/pdfs/CH_3314_2005.pdf
The case concerned an EU national claimant who was working and stopped work because her childcare arrangements broke down. She claimed IS but indicated that she was looking for work. We argued that she should still be treated as a worker as she was involuntarily unemployed and had remained in the labour market.
The good news is that Commissioner Rowland accepted that she could be a workseeker even though she was claiming IS rather than JSA. (note that this only works for claims prior to 30/4/06 - after that date the right to reside as a jobseeker does not count for IS claims - see IS Reg 21AA(3)(b) as inserted by Reg 6 of SS(PFA) Regs 2006).
He then goes on to consider what being a workseeker means. He decided that to be a workseeker the claimant had to be looking for work which was "genuine and effective" - i.e. work that if found would make them a worker, which seems reasonable.
He decided that for work to be effective it must make the claimant self-sufficient, which he felt meant that it must produce an income (including any WTC) which was equivalent to her IS applicable amount plus the rent. If the claimant claimed HB they would be a burden on the social assistance scheme.
He dismissed the appeal because he felt that the claimant did not have reasonable prospects of finding such work, given the restrictions she placed on her availability because of childcare problems.
This seems to have very serious implications not only for those claiming IS, but also for JSA claimants who restrict availability to part-time work, and possibly for low paid employees. If the Commissioner is right about what constitutes "effective" work then it would imply that any part-time employees who claim IS/JSA are not workers, and accordingly may not have a right to reside. It would also mean that anyone whose wages are below the total of their applicable amount plus their rent would not be workers. The decision does say that reliance on HB should not prevent someone being a worker, but that does not seem to sit with the rest of his reasoning.
In my view the Commissioner is wrong for a number of reasons: (The following is based on email discussion with Martin Williams at LASA, but if anything's wrong it's my fault)
The EU legislation uses the words “burden on social assistance” etc for non-economically active and for students. If they had wanted it to apply to workers they could have said so. This is illustrated in Commission v Italy case- where the ECJ discuss the difference in the burden test for students and the economically inactive. With such fine distinctions being made can it really be argued that the complete absence of any such language for workers is not important? Directive 1612/68 explicitly grants workers the same rights to social advantages as citizens of the host country (this must imply they intend workers to be able to get social assistance as otherwise they would not need this provision). If you needed such assistance on Commissioner Rowland’s reasoning you would not be a worker. It seems to create a different rule for how much work you need to look for to retain worker status and how much work you actually have to do to be a worker. There seems to be a contradiction between saying we should not mind dependence on HB to be a worker but then saying you cannot keep worker status if you are looking for less work than would stop you needing to claim HB. It also seems in effect to make whether a person is a worker or not dependent on their specific circumstances outside work. Thus a person earning £200 with several children and renting a large house might not be a worker because they would still need HB, but a single person living in a bedsit doing exactly the same job for the same wage would be a worker.
The decision could have major implications for many of our clients. We are considering appealling, but I can't find the client so at the moment nothings happening.
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