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[2009] UKUT 38 (AAC) (13 February 2009)

IN THE UPPER TRIBUNAL Appeal No. CIS/1502/2007

ADMINISTRATIVE APPEALS CHAMBER

Before: UPPER TRIBUNAL JUDGE ROWLAND

Attendances:

For the Appellant: Mr Tim Buley of counsel, instructed by South West Law.

For the Respondent: Mr Denis Edwards of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions.

Decision: The claimant's appeal is unsuccessful. The decision of the Bristol appeal tribunal dated 6 November 2006 is set aside but a decision to the same effect is substituted. The claimant is not entitled to income support on his claim made on 14 July 2005.

REASONS FOR DECISION

1. The claimant is a Dutch national. He came to the United Kingdom on 20 December 2004. On 14 July 2005, he claimed income support, on the ground that he had become temporarily ill. It appears he had already claimed incapacity benefit and so it is arguable that his claim for income support should have been treated as made on that date. The Secretary of State disallowed the claim on the ground that the claimant did not have a right of residence in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland with the consequence that he was a "person from abroad" with an applicable amount of nil (regulation 21(3G) of the Income Support (General) Regulations 1987 (S.I.1987/1967, as amended)). The claimant appealed, stating that he had "worked in the UK for three weeks full-time in January '05", but, on 6 November 2006, the appeal was disallowed on the ground that, although the claimant had been a workseeker, he had done no work since arriving in the United Kingdom and so had not become a worker entitled to retain that status while ill and therefore to retain a right of residence (see regulations 5(2)(a) and 14 of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326).
2. The claimant now appeals with the leave of Mr Commissioner Jacobs. Mr Buley did not argue before me that the claimant had become a worker simply by virtue of having been a workseeker, although he reserved the right to take the point should this case go further. Instead, he submitted that the tribunal had erred in law because it had failed to consider properly whether the claimant had in fact worked in the United Kingdom when the claimant had asserted in his grounds of appeal that he had worked for three weeks in the United Kingdom in January 2005. In support of the factual basis of the appeal, the claimant has submitted two pieces of documentary evidence. The first is a pay advice, dated 31 December 2004, showing that the claimant had been paid £90 for 15 hours work in the preceding week. The second is a letter dated 26 October 2007 from an employment agency, stating that the claimant "has undertaken temporary bookings on behalf of [the agency]. As they have not been working directly under my supervision I am only able to confirm the dates of employment as follows:- employed from 07.01.05 – 04.02.05."
3. The Secretary of State concedes that the tribunal did err in failing to explain its finding that the claimant had worked in the United Kingdom. I agree. The tribunal may have been misled by the claimant having apparently said on form HRT2(R) that he had not had any jobs in the United Kingdom and by his not having challenged the Secretary of State's evidence that he had been in receipt of jobseeker's allowance from 3 December 2004 to 21 June 2005, but his grounds of appeal were clear enough and the apparent discrepancy should have been resolved.
4. However, the Secretary of State submits that the claimant had not, taking the available evidence at its highest, worked to a sufficient extent to become a worker with a right of residence. Mr Buley submitted that the case should be remitted to the First-tier Tribunal so that fuller evidence could be obtained, but the claimant has had ample opportunity both to provide further written evidence and to attend the hearing before me. Accordingly, I will determine this appeal on the evidence in the file. I do not consider that it matters whether the claimant worked only for the 15 hours in December or whether he also worked for three weeks in temporary jobs in January 2005. He certainly did not work to any greater extent than that. I accept Mr Buley's submission that the fact that the claimant apparently failed to disclose his employment to the Department for Work and Pensions does not mean that he can be treated as unemployed and it seems to me that his very positive assertion in his letter of appeal is likely to represent the truth, particularly as it appears to be supported by the agency's evidence. However, there is no evidence that his three weeks of work was all in one job (and the fact that the dates mentioned by the agency span four weeks suggests that at least two jobs were involved) or as to how many hours a week he worked in the "full-time" employment or, indeed, whether three weeks was exactly the amount of time for which he worked or whether he might in fact have worked for slightly less time.
5. Mr Buley argued that, once a claimant had done any work at all, he became a "worker", and so was entitled to rely upon regulation 5(2)(a) of the 2000 Regulations when he became temporarily ill. He accepted that the work had to be genuine and effective but submitted that the duration of the work was unimportant and that working 15 hours in December 2004 was sufficient in the present case. Mr Edwards, on the other hand, submitted that regard had to be had to the length of time that the person was employed and that agency work was, by its very nature, insufficient to enable a person to acquire the status of "worker".
6. "Worker" is unhelpfully defined by regulation 3(1)(a) of the 2000 Regulations as "a worker within the meaning of Article 39 of the EC Treaty". Plainly, therefore, it has a Community meaning. However, as was pointed out in Martinez Sala v Freistaat Bayern (Case C-85/96) E.C.R. I-2691 at paragraphs 31 and 32, the term is not used consistently in Community law. It takes its flavour from the context in which it is used. For this reason, I have not found the large number of authorities cited to me by both parties particularly helpful. On a close examination, each of them has been concerned with a different issue from the one that arises here.
7. The question in this case is essentially: what is required to cause a person to cease to be a workseeker and become a worker? A workseeker has a right of residence in any Member State because otherwise the fundamental principle of the freedom of movement of workers would be undermined since a person often cannot be expected to find work in a different Member State without first moving there to look for work. (Regina v Immigration Appeal Tribunal, Ex parte Antonissen (C292/89) [1991] ECR I-745). However, if a person becomes temporarily incapable of work, he generally ceases to be a workseeker and so ceases to have a right of residence, subject to Mr Buley's reserved argument. On the other hand, regulation 5(2) gave effect to article 7(1) of Directive 68/360/EEC, and provided that a worker did not lose the status of worker while temporarily incapable of work or involuntarily unemployed. The saving for those involuntarily unemployed had limited (but not negligible) practical importance once it had been recognised that a workseeker has a right of residence even before first becoming a worker, but it remained necessary for a person to have first been a worker (or a self-employed person (see regulation 5(3)) if he or she wishes to retain a right of residence while temporarily incapable of work and not otherwise a "qualified person".
8. There is no doubt that a person does not become a worker for the purpose of acquiring rights of residence, unless the work performed is genuine and effective rather than marginal or ancillary (see the cases cited by me in CH/3314/2005 and by the Court of Appeal in Barry v London Borough of Southwark [2008] EWCA Civ 1440). (However, I would be surprised if even marginal or ancillary work was not relevant in relation to health and safety legislation, as long as the work was genuine.) In deciding whether work is effective, one is entitled to have regard to its duration (see Raulin v Minister van Onderwijs en Wetenschappen [Case C-357/89). I accept that, in that case, the court was concerned with a person who had worked for only sixty hours over eight months but I do not see why the duration of a contract of employment should not also be relevant where the number of hours worked is proportionately more significant. In CIS/1793/2007, Mr Commissioner Jacobs held that the claimant did not remain a worker where he had been employed in a series of temporary jobs, none lasting more than four weeks, for a total of ten weeks over some three years. In Barry, the claimant had temporary work for two weeks for sufficient hours to earn £830 and it was held that that would have been long enough to enable him to qualify as a worker even if he had not worked for some months ending only a couple of weeks earlier. However, it was unnecessary for the Court to go that far because Mr Barry had plainly been a worker and the issue in the case was whether the two weeks' work fell to be ignored in deciding whether he had been unemployed for six months. (Indeed, it is not clear to me why Mr Barry could not have succeeded in showing he was a "worker" under regulation 6(2)(b)(iii) of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) immediately before becoming incapable of work, even if the two weeks' work had been ignored.)
9. The issue in a case like the present may be said to be whether the claimant has genuinely and effectively (to borrow that phrase from its usual context) become a worker rather than a workseeker. I do not accept Mr Edwards' submission that agency work is by its nature ancillary and insufficient to confer on a claimant the status of worker. Although agency work is often temporary and for short periods, it is not necessarily so. However, I do accept that a distinction is to be drawn between temporary employment for a short period and indefinite employment that has been curtailed prematurely. Where work is undertaken for what is expected from the outset to be for a very short period and is known to be temporary, the person concerned is obliged to keep looking for work and often he or she cannot realistically be said to have become established in work and to have ceased to be a workseeker. It does not follow that all agency workers always remain workseekers. Where short periods of temporary work are not separated by longer periods of no work, it will often be appropriate to regard the person concerned as having become a worker rather than a workseeker. There will be cases where work that is temporarily is nonetheless for a prolonged period or where there is a high likelihood of further work being obtained and, in particular, many agency workers will be able to show that the agency has regularly found them work albeit for short periods and they have, for practical purposes, become established members of the national workforce. On the other hand, where a person has worked only intermittently for very short periods, as in CIS/1793/2007, the claimant is more likely to have remained a workseeker because the work performed has been marginal. The case-law shows that whether work is marginal is a matter of judgement on the facts of each case. In Ninni-Orasche v Bundesminister für Wissenschaft, Verkehr und Kunst (Case C-413/01) [2003] ECR I-13187, the Court did not rule out the possibility that work under a fixed-term contract for two and a half months might be marginal and ancillary.
10. In the present case, I am not satisfied that the claimant's work was ever more than marginal. It seems to me that he remained throughout a workseeker and, indeed, he held himself out to the Department for Work and Pensions as such. Therefore, when he became ill and ceased to be a workseeker, he ceased to have a right of residence in the United Kingdom. Accordingly, he was not entitled to income support.

MARK ROWLAND

13 February 2009