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.

More stuff from our email correspondence-

Can one argue that what the Commissioner has to say about whether work is effective is obiter and not binding on a Tribunal? This would work as follows:

1. Everything Commissioner Rowland has to say about the amount of work a person is looking for in CIS/3315/2005, should properly be regarded as obiter. This is apparent from the following:

a)He prefaces everything he has to say in his decision by saying he does not need to have a concluded view on the issue of what constitutes an unreasonable burden (para 27).

b) It is abundantly clear from paras 30 and 31 that the reason the Commissioner found the claimant not to be seeking genuine and effective work was that she had no realistic prospects of securing it (rather than that it would not have been effective if she had secured it as not enough work).

c) Equally, it is clear that the Commissioner found, on the test that he elaborated in paragraphs 28 and 29 that the work the claimant wanted was (just) “effective”. Thus the real reason for the decision in this case was that the claimant had no realistic prospect of securing work under the restrictions she was placing on the work she would do– whether or not that work was effective is thus not an issue that it was necessary to the Commissioner’s decision and is not a binding part of the decision on the present Tribunal.

ALSO

A further possible error of law (assuming his stuff about how much work has to pay to be effective is ratio and not obiter):

Everything the ECJ say in Levin and Kempf follows from the fact that they hold that the terms “worker” and “activity as an employed person” are Community concepts and as such may not be defined by reference to national provisions (in Levin to the minimum wage and in Kempf to the availability of social assistance).

Commissioner Rowland’s formula at paragraphs 28 and 29 clearly seeks to determine whether the claimant was a worker or not by reference to national provisions (levels of benefit she could claim are such provisions).

As such it is in error.

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Oh, and here is a free rant (stop reading now if you want)-


At this stage, I am fairly dis-spirited by the direction of Commissioners decision on right to reside stuff. I never expected some of the arguments to succeed (but it was worth taking them). However, the rigid insistence on the terms of the Directives etc. seen in a number of decisions does not seem to accord with the approach the ECJ has taken to the cases coming before it.

Given that we are not having much joy with our cases in domestic courts, I think that a good tactic at this stage may be to try and get cases referred to ECJ (I understand even an Appeal Tribunal can do this..... ).

Also having the usual problem of any cases on which the facts are particularly good winning at Appeal and then the DWP letting us down by not appealing (good for the client rubbish for getting decent cases to go up).

For example claimant who was a child when brought to UK with her non economically active mother who had no right to reside and then becomes 18. After three months on JSA developed schizophrenia- very compelling- and claims IS- refused as she had no R to R. Sub based on why should the R to R which is designed to deter people from coming to the UK to claim benefits (a legitimate social policy aim) also apply to the children of such people when they grow up (given they had no choice in coming here and clearly are not part of group policy is aimed at encouraging to leave then its application to them is disproportionate etc).

Ps- has anyone met a person who's only potential right to reside is as a workseeker but who suffers from the unfortunate problem of being aged over 60 and hence excluded from JSA? If based in London we would love to see some referrals of elderly unemployed people for use in a discrimination argument..... (just need the punter).

Anyway, rant over.

Martin

Keith,

As you say, this decision may have a considerable impact. I understand that it is on the shortlist for reporting. Have you appealed?

Client disappeared, so we could not appeal. We have a couple of similar cases before the Commissioners, and I understand that others do as well, so if those cases follow this one, someone may be able to get the issues considered at a higher level.