News has reached us at NL Towers (or lock-up – see image at bottom of page) from a regular reader/correspondent, Simon Marciniak, of an interesting and potentially important s 204 homelessness appeal decision on the ambit of Regulation 6(2)(a), Immigration (European Economic Area) Regulations 2006, SI 2006/1003. That regulation says that:
A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if – (a) he is temporarily unable to work as the result of an illness or accident.
So, if you are otherwise ineligible and not a worker, but temporarily unable to work due to illness/incapacity, you are treated as a worker and, therefore, eligible. In Samin v Westminster CC, Central London CC (July 2011), Mr Samin worked for a short period, was then on JSA and was then treated for PTSD from 2007, from when he was unable to work. Westminster found him not eligible, as we understand it, because he didn’t fall within Reg 6(2)(a) on the basis that he was not ill when he gave up work and because his illness was not temporary. HHJ Mitchell quashed that decision, finding that Reg 6(2) operates when a person is no longer working, ie if the illness happens after the applicant lost his job and even if the illness was unrelated to his work; and that he was bound by the decision in FB v Secretary of State for Work [2010] UKUT 447 (IAC) to find that temporary in para (a) meant not permanent. This is the first time that FB has been applied to a homelessness eligibility decision, as foreshadowed by the suggestions in our note of its significance for housing and benefits. But it’s “only” a County Court decision, so don’t get too excited.
But are Westminster going to appeal it?
It doesnt seem that contentious that you can move between the different heads of regulation 6 of IEEA regs 2006 ( see the income support upper tribunal case of CIS 4304 2007 – http://www.osscsc.gov.uk/Aspx/view.aspx?id=2425).
So long as you have retained worker status by the time you flip to section 6(2)(a) you should be fine. Of course if you havent retained worker status at the point you become ill you are in a bit of trouble and can only regain your work status by working.
Or at least thats how i think it works…
Well, yes, J Lam, but Mr Samin hadn’t retained worker status by that point – his argument was that Reg 6(2)(a) was freestanding and it was that argument which was successful before HHJ Mitchell.
Ah! i merely assumed because he “worked for a short period, was then on JSA and was then treated for PTSD” he retained worker status throughout. A freestanding claim under reg 6(2)would be rather more exciting. Apologies
The case of FB can be distinguished on the basis that the claimants father was a worker until the summer of 2004 when he had to stop working due to an illness. Thereafter his absence from the employment market was either temporary or permanent. In the instant case the claimant simply ceased work and once the employment relationship ended, the status of worker was lost (Case C-43/99 Leclere [2001]. It would be inconsistent with the provisions of the Directive to hold that a person who has no links to the employment market of a member state can resurrect the status of worker if he becomes unwell. To hold that the status of worker is retained to infinity would be illegitimate judicial legislation, amending Article 7.3(a) by inserting “at any time”. Moreover, the effect of the insertion would be uncertain: for how long after ceasing work would the status of worker be retained? Or to put it another way, how long does a person have to become ill?
I hope Westminster appeals this one.
Yes but you could ask the same question about the other categories of applicant under Regulation 6 e.g. how long does a person have after becoming unemployed to embark on vocational training?
The Regulations have to tolerate a hiatus in order to give practical effect to the categories as a whole. As the Regulations do not provide a framework for determining what constitutes an allowable gap, the consequence is that those who are incapable of work appear to enjoy more generous treatment. If there is a conflict with EC law, this is because of the structure of Regulation 6. So does this mean Regulation 6 is potentially ultra vires?
FB was only relied upon in connection with the temporarily/permanently incapable of work definition, not the hiatus point.
But is the hiatus not provided for by the fact that someone can be out of work for a short period and still retain worker status? Someone who is not in work but who has retained worker status when s/he becomes ill would clearly fit into the wording of Reg 6(2)(a). But it is difficult to see how someone who had lost worker status would fit into the wording – there is a difference between ‘shall not cease to be treated as a worker’ and ‘shall be treated as a worker’.
There is a decision from the Social Security Commissioner dealing with the Income Support regulations which supports the County Court: http://www.administrativeappeals.tribunals.gov.uk/aspx/view.aspx?id=2425