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30/07/2011

Homelessness, Workers and ‘effective employment’

Falastin Amin v Brent LBC, Wandsworth County Court 2011

A county court s.204 appeal on the issue of eligibility of an EU citizen as a ‘wroker’. While it is not binding, it sets out a clear position which, given the involvement of Minos Perdios in the review decision, could well be of broader relevance. The following report was provided by lawyers in the case.

Mrs Amin is a Danish Citizen. She applied to Brent for assistance as a homeless person. At the time of her application she was unemployed, however, between the s184 decision and the review decision she obtained part-time work as a Customer Care Assistant working 16 hours per week and earning £92.80 per week.

The review decision was made by Minos Perdios (who makes such decisions for a number of local authorities). Mr Perdios, relying on the decision of Social Security Commissioner Mark Rowland in CH3314/2005, found that Mrs Amin’s work did not provide enough income to cover what he considered to be her ‘reasonable living expenses’. He found, therefore, that the employment was not “effective” and, consequently, that Mrs Amin was not a ‘worker’ within the meaning of Article 39 of the Treaty establishing the European Community.

Ms Amin appealed.

HHJ Rylance, sitting at Wandsworth County Court, held that it was clear from the jurisprudence of the ECHR and the decision of the Court of Appeal in Barry v Southwark LBC [2009] ICR 437 (our report here) that the question of whether work is “effective” is to be looked at from the point of view of the value of the work to the employer and not to the employee. Commissioner Rowland’s formula, adopted by Mr Perdios, was wrong.

Many thanks to Sean Pettit of 1 Pump Court and Tony Owen of TV Edwards for the report.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

3 Comments

  1. Stephen O'Neill

    Mr Perdios was plainly wrong to rely on CH3314/2005. Commissioner Mark Rowland in that case was dealing with the predecessor regulations and not those now enshrined in Directive 2004/38/EC. In CIS/2364/2006 he himself said that the questions raised in CH3314/2005 were no live issues since June 2006 -page 6199 of the attached decision-making volume: http://www.dwp.gov.uk/commdecs/amendpkg/07_no8.pdf

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  2. Nik Nicol

    I had a case challenging an identical decision by Brent. Brent conceded the appeal by conceding eligibility. We asked for our costs. Brent claimed that the only reason they had conceded the appeal was because it would be too expensive to prove the correctness of their legal argument before the Court of Appeal. My guess, therefore, is that they are going to continue to deny eligibility to homeless applicants on the same basis but will concede any appeals challenging the relevant legal argument.

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