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Neutral Citation Number:	2011 UKUT 477 AAC
Reported Number:
File Number:	CSJSA 563 2010
Appellant:	RJ
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge A J Gamble
Date Of Decision:	01/12/2011
Date Added:	20/12/2011
Main Category:	European Union law
Main Subcategory:	workers
Secondary Category:	Jobseekers allowance
Secondary Subcategory:	other
Notes:	Reported as [2012] AACR 28. European Union law – right to reside – whether claimant was self-employed at date of claim for jobseeker’s allowance for the purposes of Council Directive No. 2004/38/EC At the time of his claim, the claimant was a Polish national and a citizen of the European Union. He applied for income-based jobseeker’s allowance. Regulation 85A(4) of the Jobseekers Allowance Regulations 1996 provides, inter alia, that a claimant is not a person from abroad if he is a self-employed person for the purpose of Council Directive No. 2004/38/EC. In 2009, a decision-maker decided that his applicable amount for the purpose of his claim was nil as he was a person from abroad because he did not have a right to reside and was therefore not habitually resident in the UK. The First-tier Tribunal refused his appeal. The claimant appealed to the Upper Tribunal. Held, allowing the appeal, that: 1. the decision of the First-tier Tribunal was erroneous in law because it had failed to make sufficient findings to determine whether the claimant was self-employed at the time of his claim. Being self-employed and actually working as such were not the same thing. Careful fact-finding on the issue of self-employment was required. (Secretary of State for Work and Pensions v JS [2010] UKUT 240 (AAC) and Secretary of State for Work and Pensions v AL [2010] UKUT 451 (AAC) followed) (paragraph 9); 2. Article 7.3(b) and (c) applied only to “workers” and not to “self-employed persons”. The claimant could therefore only succeed in his appeal by establishing that he was self-employed at the date of claim (Tilianu v Secretary of State for Work and Pensions [2010] EWCA Civ 1397 applied) (paragraph 9); 3. the decision of the Supreme Court in Patmalniece v Secretary of State for Work and Pensions established that discrimination on the grounds of nationality was justified because the right to reside test had the legitimate purpose of ensuring that a claimant had achieved economic or social integration in the United Kingdom as a pre-condition of entitlement to benefit and that that justification was relevant, sufficient and independent of the issue of nationality. It was noted that the European Commission had indicated that the decision in Patmalniece contravened European Law. However no reference had been made to the European Court of Justice and accordingly the decision of the Supreme Court remained a binding authority (paragraph 12); 4. the decision of the Court of Appeal in Tilianu v Secretary of State for Work and Pensions established that Article 7.3(b) and (c) applies only to “workers” but not “self-employed persons”. The proposition that this decision should not be followed in Scotland was rejected. Judges of the Upper Tribunal sitting in Scotland should ordinarily expect to follow decisions of the Court of Appeal where the point before them is indistinguishable from the issue before the Court. Furthermore an identical issue had previously been determined by a judge of the Upper Tribunal in Secretary of State for Work and Pensions v RK [2009] UKUT 209 (AAC) (paragraph 13); 5. the judge declined to make a reference to the Court of Justice of the European Union (paragraph 16). The judge remitted the case to a new tribunal for redetermination in accordance with the directions in paragraph 18.
Decision(s) to Download:	[2012] AACR 28bv.doc [2012] AACR 28ws.doc