Once again the issue of an applicant’s eligibility for benefits has come before the courts in Sylwia Kaczmarek v Secretary of State for Work and Pensions  EWCA Civ 1310. I am sure that all those with an interest in housing law will appreciate the importance of entitlement to benefits for many people within this field.
Ms Kaczmarek came to the UK from Poland, which was an EEA country at the material time. It was argued on behalf of Ms Kaczmarek that although she clearly was not eligible under domestic legislation, she was entitled to income support relying on Articles 12 and 18 of the EU Treaty, when read in conjunction with part of Trojani v Centre Public d’aide sociale de Bruxelles (Case C-456/02)  ECR I-7573. The Court of Appeal unanimously rejected this argument.
The appellant came to this country as a student in April 2002. She later worked on a part-time basis from June 2003 until April 2004 and then on a full-time basis from May 2004 until July 2004. She then went on maternity leave until February 2005, giving birth to a daughter in October 2004. She was not initially available to return to work as her baby daughter was sick and she could not afford a childminder. She therefore applied for income support. Her application was rejected but she appealed successfully to the Independent Appeal Tribunal. The Secretary of State then succesfully appealed this decision to the Social Security Commissioner. Ms Kaczmarek has since returned to work and has been in employment since October 2006. Her income support claim was therefore for May 2005 to October 2006.
Article 12 of the Treaty states:
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
While the relevant part of Article 18 is:
Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect …
On behalf of Ms Kaczmarek Natalie Lieven QC relied heavily on para 43 of Trojani:
… with regard to [certain social security benefits], a citizen of the Union who is not economically active may rely on Article 12 EC where he has been lawfully resident in the host Member State for a certain time or possesses a residence permit …
At  Maurice Kay LJ said that:
The question in relation to Article 12 is a narrow one. It is: Does the reference to lawful residence “for a certain time” in paragraph 43 of Trojani open the door to eligibility based on residence of unspecified but significant duration and of a type which evidences a degree of social integration in the host Member State? In my judgment, it does not.
He agreed with the Social Security Commissioner that:
[T]he reference to “a certain time” is a reference to specific qualifying periods which give rise to an express right of residence.
Maurice Kay LJ then considered whether it was disproportionate to deny a right of residence to a person in the position of the appellant, particularly in the light of Baumbast v Secretary of State for the Home Department  ECR I-7091. In that case a lucana had been filled because it would be disproportionate for a Directive and domestic legislation to undermine Article 18. In his judgment:
It is abundantly clear that the facts of Baumbast were more susceptible to “lacuna filling” than the facts of the present case where, at the material time, the appellant was no longer a worker and nor was she at all self-sufficient.
Maurice Kay LJ also agreed with the Social Security Commissioner that Council Directive 2004/38/EC shed some light on the matter. This Directive did not come into force until 30 April 2006 and therefore does not strictly apply to Ms Kaczmarek’s case. As this Directive allows for a right of permanent residence after five years’ lawful presence without the applicant being economically active “it would be inappropriate and presumptuous for us to characterise something as a lacuna when it was not identified as such by the Council when it most recently moved to enlarge eligibility.” 
Stanley Burton LJ and Sir Anthony Clarke MR agreed with Maurice Kay LJ.
One can’t but help feel sorry for the claimants in this case and in Zalewska. Neither of them seem to be “benefits tourists”, yet both have missed out. On balance it is Ms Zalewska who appears to have got the rawest deal – she had actually completed the required period in employment, but had simply failed to register one part of it – which of course meant that her employer was committing a criminal offence, but she was the one who was hit hardest.