Head of Legal had an interesting post in response to my post on Hodge’s outburst (the ramifications of which rumble on, including the BNP noting gratefully that they win whether the ideas become policy or if they are not carried through. Unfortunately true. Well done Margaret).

Head of Legal, I think, suggested that Directive 2004/38 (pdf) overrode most of the current restrictions on EU citizens being workers or workseekers in order to have benefit and housing entitlement. In particular, he suggested that they would be entitled during the first 3 months in any case and also when not workseekers, because they retain the right to reside if they become incapable of work or become vocational students. (Apologies for any misrepresentation).

I’ve had a quick look at the Directive and I’m not so sure that it does change matters much. Taking it point by point:

1. Right of residence for initial 3 months. This is given by Art 6. But Art 24(2) allows a derogation from the general rule such that there is no social assistance for this 3 month period. England has indeed made such a derogation – see Allocation of Housing and Homelessness (Eligibility)(England) Regs 2006 SI No 1294. So, there is no housing eligibility for anyone whose only right of residence is via Art 6.

2. A right of residence longer than 3 months is provided for in Art 7. The right of residence is only for workers or self-employed, or self-sufficient or self-sufficient students only (plus family members). Art 7 provides that workers remain workers if:

• a) Temporarily unable to work through illness or accident;
• b) Subject to involuntary unemployment after one year employment and are registered jobseekers;
• c) Subject to involuntary unemployed after a fixed term job of less than a year or during first 12 months and are registered jobseekers – this lasts for no less than 6 months (but not necessarily any longer. The UK says 6 months);
• d) Are in vocational training related to previous employment.

These get housing assistance, pretty much as before. The vocational training point is interesting, but won’t cover many people. I suspect that it won’t extend to much in the way of studentdom. There could be some clashes on this. It is also worth noting the ‘temporarily’ in a).

I suspect that ‘training v student’ aside, the only issues may be how long is ‘temporary’ in a) and the length of time that can be spent as a workseeker in b) before losing worker status. On the latter, see R (ex p Mohamed) v Harrow LBC [2005] EWHC 3194 (Admin), which said 15 months was too long. (I think this was probably decided before any implementation of the directive, though).

3. Head of Legal raises equal treatment under Art 24. This is of course the case, but Art 12(2) provides that the right of residence remains subject to being a worker/self-employed/self-sufficient. Equal treatment applies to those who qualify. But the self-sufficient are, by definition, not entitled to housing or welfare assistance.

Head of Legal could well be right that there won’t be much checking of a right to residence generally, but there usually is on applying for benefits and certainly is when seeking housing assistance from the local authority. Until a full right to residence is gained under Art 16 (5 years residence), the qualifications to entitlement I set out in the ‘Hodge’ post pretty much stand, in my suddenly rather unhumble opinion, with some changes in the details.

The qualification on illness or accident in Art 7(a) does mean that an EU citizen receiving Income Support may be entitled to housing assistance, which was pretty much not the case, but only if this is demonstrably a temporary period due to illness or accident, so it is also likely that an intention to return to work or workseeking will need to be shown.

Of course, when the EU citizen is entitled to housing assistance, non-discrimination applies, as indeed it did before. As both Head of Legal and I observed, this is certainly a problem for Hodge’s view.

By the way, EU Students – vocational ones under Art 7(d) excepted – are not entitled to housing assistance generally and are also not entitled to housing benefit or benefits generally.