Barry v London Borough of Southwark [2008] EWCA Civ 1440 concerned an EEA national’s eligibility for social housing, via a Part VII application.

EEA ‘workers’ are eligible for housing assistance as they are not persons subject to immigration control for the purposes of s.185(1) Housing Act 1996 and Reg 6 of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations. The definition of “worker” in reg 6(1) of the Immigration (European Economic Area) Regulations (“the EEA regulations”) applies.

Mr Barry contened that his case fell within reg 6(2)(b)(ii) of the EEA regulations:

(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if …(b)he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office and…(ii) he has been unemployed for no more than six months…

EC Directive 2004/38 indicates that the status of worker is retained for 6 months after becoming involuntarily unemployed.

A LB Southwark review officer had decided on s.202 review that a period of two weeks in July 2006 that Mr Barry spent working as a steward at the Wimbledon Championships, which was the only employment in the relevant 6 month period did not qualify him for worker status.

Your role as a steward was a finite period of employment, which could not have extended past the two weeks of the championship. This is casual and seasonal work. Every year, Wimbledon runs for a period of two weeks and employs people in various jobs. This work is not effective and genuine, but instead is marginal and ancillary.

The review officer’s decision was upheld on s.204 appeal to Lambeth County Court, where HHJ Welchman found whether in was employment or not was a matter of fact, and the decision was not perverse. Mr Barry appealed to the Court of Appeal.

Mr Barry suffered a serious accident in December 2006 and has not been able to work since. Mr Barry had been working as a security guard between August 2005 and May 2006, so this was not the year required for Reg 6(2)(b)(i).

Southwark argued that the question whether Mr Barry was a worker was one of fact and that it was for the review officer to evaluate the facts. The review officer committed no error of law. The period spent at the Wimbledon championships did not constitute relevant work. If it was work, it was not necessary to look at the earlier period. If the period spent at the Wimbledon championships was not work, the earlier period could not convert the period at the Wimbledon championships into work.

Mr Barry argued that:
1. Southwark had made an error of law in not addressing the work history as whole.
2. The term worker address a fundamental freedom under the Treaty and should not be applied restrictively.
3. Work history must not be excluded. It is necessary to look at work history to tell whether the work was ancillary or marginal. The freedom of movement provisions do not penalise those who have had a break in their employment.
4. The employment at Wimbledon alone was in any case sufficient to retain worker status.

Arden LJ’s lead judgment considers ECJ cases: D.M.Levin v Staatssecretaris van Justitie, Case 53/81; Lawrie-Blum v Land Baden-Wurttemberg, Case 66/85; to find:

that work will be subsidiary or ancillary if it is done pursuant to some other relationship between the parties which is not an employment relationship, as where a lodger performs some small task for his landlord as part of the terms of his tenancy. The duration of the employment is, however, a factor to be taken into account.

But duration is not a conclusive factor.

For this reason, there is good reason to consider past work history. If it was limited to the 6 month period, any relevant work would necessarily be of short – less than 6 months – duration. It seems impossible to say that someone who had been in continuous employment right up to the commencement of the six month period and then for the next day in the period was not a worker. Or there may be a series of short term employments, e.g. as a locum. Mr Barry’s previous employment as a security guard showed a number of short term contracts.

Mr Barry’s work at Wimbledon was of economic value – if he hadn’t done it, Wimbledon would have employed someone else. It was not marginal because he was paid a not insignificant sum.

V.J.M. Raulin v Minister van Onderwijs en Wetenschappen Case C-357/89 states that duration of work is a finding of fact, but also supports taking the previous wok history into account.

The review officer had failed to consider the previous work history and was wrong on the whether the Wimbledon work qualified Mr Berry as a worker. Decision set aside. Southwark had issued a respondent’s notice with two further grounds:

The first ground is that, even if the review officer was wrong to hold, as he did, that Mr Barry was not a “worker” for the period of two weeks spent at the Wimbledon championships, the review officer was nonetheless entitled to treat Mr Barry as unemployed for more than six months, because there was an earlier period which could be aggregated to the period of 5 1/2 months. Miss Bretherton submits that there is nothing in the regulations to require periods of unemployment (if more than one) to be consecutive. I reject this point. Hers is a possible meaning of the language read literally but it would give reg 6(2)(b)(ii) a capricious effect according to the length of time a person had been in employment. On the true interpretation of reg 6, the only relevant period of six months is that immediately before the relevant date, which in this case is the date of Mr Barry’s accident. The second ground in the respondent’s notice is that the periods during which Mr Barry was in receipt of Jobseeker’s Allowance have to be excluded. I reject this argument also. The question whether a person is a “worker” is to be determined by reference to the principles laid down by the Court of Justice set out above, which exclusively define a worker (see, for example, Brown v Secretary of State for Scotland Case 197/86 at [22]). There is no provision that he is to be deprived of that status because he was also receiving Jobseeker’s Allowance,

Appeal allowed by all three judgments.