Secretary of State for Work and Pensions v Elmi [2011] EWCA Civ 1403

Case No C3/2010/1467[2011] EWCA Civ 1403
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
ADMINISTRATION APPEALS CHAMBER
MR JUSTICE WALKER & UPPER TRIBUNAL JUDGES WARD
AND HOWELL QC REF: CIS/184/08
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 18 th October 2011
Before
LORD JUSTICE MAURICE KAYLORD JUSTICE MOSESMRS JUSTICE BARON
Between
Secretary of State for Work and PensionsAppellantElmiRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Jason Coppel and Mr Denis Edwards (instructed by the Legal Group of the Department for Work and Pensions) appeared on behalf of the Appellant.Mr Simon Cox (instructed by SA Law Chambers Solicitors) appeared for Respondent.
Judgment
[1]The issue in this case is whether the respondent, a French single parent, is entitled to Income Support. She arrived in the United Kingdom on 2 September 2005 with her young child. She sought and soon obtained employment, but after six months she was made redundant. On 20 June 2006 she claimed, but was ultimately refused, Income Support by the Department for Work and Pensions (DWP); however, she successfully appealed to the appeal tribunal and the Upper Tribunal dismissed an appeal by the Secretary of State in a decision dated 18 December 2009. The decision of the Upper Tribunal was by a majority, Walker J and Judge Ward, Judge Howell QC dissenting. The Upper Tribunal granted the Secretary of State permission to appeal to this court.[2]Under the Income Support (General) Regulations 1987 regulation 21 AA "a person from abroad" is not entitled to Income Support. Paragraph 4 of that regulation lists categories of persons who are not to be treated as "persons from abroad" for this purpose. They include:
"a) a worker for the purposes of Council Directive No.2004/38/EC; b) a self-employed person for the purposes of that Directive; c) a person who retains a status referred to in subparagraph (a) or (b) pursuant to Article 7(3) of that Directive."
[3]The Directive in question is generally referred to as the Citizen's Directive. The relevant parts of Article 7 provide:
“1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State… 3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances: (c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months…”
(emphasis added)[4]It is common ground that the respondent had become "involuntarily unemployed during the first twelve months" by reason of her redundancy. The issue relates to the words I have emphasised: had the respondent "registered as a job seeker with the relevant employment office"?[5]The undisputed facts in relation to registration are that, having been made redundant, the respondent attended her local Jobcentre. She was given a historical residence test form. The questions asked on the form included whether she was seeking work. The respondent represented in the appropriate tick box that she was. It was found as a fact that that was a genuine answer. She also completed an application form for Income Support. The appeal tribunal and the Upper Tribunal held that on the basis of those facts the respondent had "registered as a job seeker with the relevant employment office". It is common ground that a Jobcentre is a "relevant employment office". The question is whether she had "registered as a job seeker". The case for the Secretary of State[6]Income Support and Job Seekers Allowance (JSA) are separate social security benefits which cannot be received by the same person at the same time. JSA was conceived as the appropriate benefit for a person who has lost his employment but is seeking suitable work; it is available on different bases, in particular an income basis and a contributions basis. Income Support, on the other hand, is less rigorously related to job seeking. It was described by Judge Howell QC in his dissenting judgment as "the social assistance benefit of last resort". Income Support is governed by the Income Support (General) Regulations 1987; JSA by the Job Seekers Act 1995. The more rigorous demands of JSA include the requirement that the claimant has entered into a Job Seeker's Agreement which remains in force and that he is actively seeking work: Section 1(2). The DWP is able to monitor satisfaction of these and other requirements on an ongoing basis.[7]At no relevant stage did the respondent claim JSA. The tick box to which I have referred was on a pro forma which is issued without distinction to Income Support and JSA claimants, but thereafter she claimed Income Support. The concerns pursuant to Article 7(3) of the Directive are whether she is "in duly recorded involuntary employment" and whether she "has registered as a job seeker". The Secretary of State accepts that she is "duly recorded" as being in a state of involuntary unemployment but denies that she "has registered as a job seeker". He does not contend that the term "job seeker” in Article 7(3)(c) of the Directive is precisely the same term of art as is defined in the domestic Jobseekers Act; rather his case is that more generally the retained status of "worker" in Article 7(3)(c) is confined to those who have ceased to be employed but have retained their link with the labour market by claiming a job-related benefit.[8]The basic building block in the Secretary of State's case in this court is that as a matter of EU law "registration as a job seeker" involves subjecting oneself to the rigour of control mechanisms such as those which arise under the Job Seekers Act 1995 and which enable the DWP to monitor the claimant's continuing efforts to obtain work. In support of this submission reliance is sought to be placed on R v Immigration Appeal Tribunal ex parte Antonissen [1991] ECR I-745 (ECJ) in which Advocate General Darmon stated at paragraph 39:
"…if the national authorities check that employment is being sought seriously, effectively and consistently, this should enable them in any event to identify those persons who are not genuinely looking for employment."
[9]Antonissen was concerned with restrictions on the power to deport an EU citizen rather than eligibility for a particular welfare benefit, but Mr Jason Coppel submits that the same principle informs the meaning of Article 7(3)(c) in the present case. Discussion[10]The Citizen's Directive has to be seen in its context. It is a measure relating to the rights which derive from Article 39 of the EC Treaty, now Article 45 of the Treaty for the European Union, which secures freedom of movement for workers within the Union by abolishing:
"any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment."
[11]The Citizen's Directive is at least in part an implementation of Article 39/45. Indeed recital 3 of the preamble to the Directive refers to its purpose as being to "simplify and strengthen the right of free movement and residence of all Union citizens" (see also Lassal [2011] 1 CMLR 31 at paragraph 30).[12]On behalf of the respondent Mr Simon Cox accepts that the reference in Article 7(3)(c) to registration as a job seeker enables a Member State to flesh out the concept of registration so as to oblige a claimant in relation to a particular social benefit to comply with reasonable continuing requirements which would enable the Member State to monitor his conscientiousness as a seeker of employment, such as the ones which undoubtedly exist in relation to JSA. However, in this jurisdiction there are no comparable express requirements in relation to Income Support. Mr Cox submits that it is not permissible to construe the concept of "registration" in Article 7(3)(c) as embracing a requirement of EU law obliging a claimant to subject himself to continuing monitoring and that the failure to legislate for such a regime in relation to Income Support means that the registration requirement in Article 7(3)(c) was satisfied by ticking the box to confirm that the respondent was seeking employment.[13]It seems to me that this submission is consistent with the ordinary and natural meaning of the word “register”. One of its meanings ascribed in the Oxford English Dictionary is:
"to enter oneself or have one's name recorded in a list of people [frequently as a legal requirement] as being of a specified category."
At first sight, this is what the respondent did when she ticked the affirmative box and handed the form to a DWP official.[14]Mr Coppel's attempt to give "registration" an enhanced and more prescriptive meaning, such as would exclude Income Support from Article 7(3)(c), is founded on the legislative history of the Citizen's Directive, and one of its predecessors, Directive 68/360/EEC, Article 7 of which provided:
“A valid residence permit may not be withdrawn from a worker solely on the grounds that he is no longer in employment, either because he is temporarily incapable of work as a result of illness or accident, or because he is involuntarily unemployed, this being duly confirmed by the competent employment office.”
(emphasis added)[15]This provision was repealed by the Citizen's Directive. The submission on behalf of the Secretary of State is that the text of Article 7(3)(c) of the Citizen's Directive should be seen as a deliberate departure from the "duly confirmed" test to a more demanding one based on Antonissen. Whilst it was a deliberate change, I do not feel able to view it in the way suggested on behalf of the Secretary of State. The two Directives are qualitatively different. Directive 68/360 was directed at confirmation of involuntary unemployment by the competent employment office, ie in a UK case, the relevant Jobcentre. Article 7(3)(c) of the Citizen's Directive is concerned with "duly recorded involuntary unemployment" and the requirement that the claimant "has registered as a jobseeker with the relative employment office".[16]Mr Coppel also draws attention to Regulation 1408/71, which is concerned not with the criteria for benefit entitlement within a Member State but with the position where a person with a benefit entitlement in one Member State moves to another Member State in search of work. In that context the Regulation itself, in Article 69, requires not only registration in each of the Member States but also subjection "to the control procedure organised therein" (Article 69 (1)(b).[17]In other words, there is express recognition of the power of the host Member State to prescribe a "control procedure". Plainly that anticipates a control procedure over and above registration "to ensure that those benefits are granted only to those actively seeking employment: Gray v Adjudication Officer [1992] ECR 1-2737 at paragraph 12 [ECJ].[18]In my judgment there is no reason why regulation 1408/71 should compel an expansive construction to the concept of registration in Article 7(3)(c) of the Citizen’s Directive. What is anticipated in both is domestically prescribed control mechanisms (Arbetsmarknadsstyrelsen v Petra Rydergard [2002] ECR 1-1817 at paragraphs 19 to 23 (ECJ).[19]Although Parliament has prescribed such control mechanisms in relation to JSA it has patently omitted to do so in relation to Income Support. The approach in regulation 21AA of the Income Support General Regulations 1987 is simply to refer to Article 7(3) so as to define who is "not a person from abroad". What it does not do is to use it as a launch pad to prescribe control mechanisms akin to those found in Regulation 1408/71 and the Jobseekers Act.[20]On the other hand, there is not a total absence of prescription in the context of Income Support. Our attention has been drawn to the Social Security (Work-Focused Interviews for Lone Parents) and Miscellaneous Amendments Regulations 2000, by which a lone parent of a young child seeking Income Support is required to attend for a work-focused interview (and, by a more recent amendment, reattend at six monthly interviews) with a sanction of a 20 per cent benefit reduction for non-attendance without good cause. Mr Coppel seeks to neutralise the significance of these Regulations in the present case by reference to a decision of the Upper Tribunal: CIS/3505/2007 UKUT 25 (AAC), to the effect that attendance at such interview does not amount to registration pursuant to Article 7(3)(c). I am not convinced of the correctness of that decision, but not having the documentation underpinning the case, I say no more about it.[21]I return to the circumstances of this case. Essentially the case for the Secretary of State is that the respondent was rightly refused Income Support because it is not the appropriate benefit for a person who is actively seeking work following involuntary unemployment. She should have applied for JSA because, with its panoply of control mechanisms, it is designed to apply to those in her position. The Secretary of State accepts that, apart from the issue about registration, the respondent satisfied the criteria for Income Support and it is common ground that she would have received precisely the same sum as Income Support that she would have received as JSA, for which she would have been eligible. The case for the respondent is that she applied for Income Support because that was what the official in the Jobcentre invited her to do. There is nothing to gainsay that, and it is a fact that at that time other involuntarily unemployed single parents were given similar advice with similar results. The Secretary of State now says that that was erroneous and that, to the extent that the respondent was a victim of maladministration, she may be entitled to compensation. However, he says that those factual circumstances are irrelevant to the issue of construction and to his fundamental case that the requirement of registration as a job seeker in Article 7(3)(c) establishes that persons in the position of the respondent only cease to be "persons from abroad" when they register in relation to the correct benefit, namely JSA, or seek national insurance credits, in either of which cases they would be subject to the enhanced monitoring and control mechanisms.[22]In my judgment this analysis fails as a matter of law. I accept that it would have been and remains open to Parliament to legislate specifically and clearly for the position for which the Secretary of State contends, and that such legislation, if in reasonable terms, would be compatible with the Citizen's Directive. However, for the reasons I have given I do not consider that, having failed to do so in relation to Income Support, it is open to the Secretary of State to spell out of Article 7(3)(c) and its context and archaeology a provision that excludes those in the position of the respondent from Income Support. One must not forget that this case is about the Treaty right of free movement of workers. The Citizen's Directive was intended "to simplify and strengthen that right”: recital 3. A Member State is free to legislate for reasonable conditions and requirements in circumstances such as the present, but I reject the case for the Secretary of State that Income Support is unavailable to the respondent. I do so as a matter of construction and because, in my judgment, the contrary conclusion would fly in the face of the requirement of legal certainty under EU law with its emphasis on "specificity, precision and clarity" in the implementation of obligations (Commission v Italy [2001] ECR 1-40007 at paragraph 32).[23]I would dismiss the appeal of the Secretary of State.[24]I agree that this appeal should be dismissed. I add some words of my own only by way of emphasis. The rights which this respondent seeks to exercise are rights derived from Article 45(ex39) of the Treaty. It is trite that in order to be able to exercise those rights the claimant must demonstrate a real and genuine link with economic activity in this Member State, the United Kingdom. In those circumstances it is right that the United Kingdom should, as it is permitted to do pursuant to Article 7.3 of the Directive in issue, put in place a system which monitors and checks the link between one who is temporarily unemployed and seeking benefits and economic activity in this country.[25]For that purpose, and because it is right that Member States should exercise that measure of control in order to see whether a citizen of the EU has rights pursuant to Article 45, Article 7.3(c) of the Directive provides not only that one in the position of this respondent is in duly recorded involuntary employment, but also has registered as a job seeker with the relevant employment office.[26]In that connection I suggest that the Upper Tribunal in its majority decision failed properly to recognise that Article 73(c) does impose two requirements both being in duly recorded involuntary employment and registration as a job seeker. To that extent I agree with the minority decision of Judge Howell QC, but what follows? The Directive imposes upon Member States an obligation to put in place a lawful system of registration whereby that Member State can undertake monitoring and control in order to assess whether a particular applicant has in truth a genuine link with economic activity in this country. But in this case nothing of the sort took place. Whilst on the one hand the Secretary of State requires registration, on the other there was a total failure to put in place a lawful system of registration. As my Lord made clear, a lawful system requires the obligations of legal certainty to be satisfied. They were not in this case. This claimant for Income Support was left in a total state of ignorance as to how to subject herself to a proper system of monitoring and was permitted to claim Income Support without any warning or explanation that, if she did so, no monitoring or no proper system of monitoring would be put in place and thus the Secretary of State would be deprived of the opportunity to assess the link between her and economic activity in this country.[27]On the contrary, for all she knew she had done quite sufficient by putting her form in, explaining that she had become involuntary unemployed and wished to seek work. Her form was accepted. Absent any lawful system for registration which might well have been satisfied by her being clearly told on the form that she needed to apply for Job Seekers Allowance and not for Income Support, it seems to me unlawful, as well as quite unjust, for the Secretary of State to turn round and say “because you applied for the wrong form of benefit we could not monitor the truth or otherwise of your claim and therefore you are not entitled to Income Support because you are a person from abroad”.[28]In those circumstances not only the merits but also the law points all one way and I too would dismiss this appeal.[29]For the reasons given by both their Lordships I also would dismiss this appeal.

Order

Appeal dismissed

Cited in 13 later judgments

and 4 more of the most senior