Court of Appeal case on effect of break in dependency on permanent right to reside

I had typed something longer but lost it all when interrupted by a phone call. Client has now been in touch but I am struggling to identify a clear error of law here.

Essentially, I accept everything above about case law where,  essentially, a person’s status as a worker has not ended. However, because client did not attend the hearing (set aside based on her misunderstanding of the need to attend has been refused), I could not say what had happened in an 11 day gap between an ESA claim ending and my client actually starting work. In those particular circumstances, tribunal clearly did not accept she retained worker status and the judge was not prepared to accept that 11 days could effectively be ignored in the consideration of what constituted a period of continuous legal residence

So the “gap” was 11 days between an ESA award ending and a job starting?

I think it is likely that the reasoning is erroneous. The conditions of entitlement for ESA and the conditions for retention of a right of residence on the grounds of temporary incapacity are not interchangeable and the latter is more generous than the former - see CIS/4304/2007 and HK v SSWP (ESA) [2017] UKUT 421 (AAC) - the cessation of ESA does not provide a safe basis for concluding that the claimant also ceased to be temporarily incapable of work. Did the Judge actually engage with and explore the question of whether the claimant had ceased to meet the EU law conditions for retention? Was there an evidential basis for concluding that the claimant in fact suddenly got better so as to create the gap?

And beyond that, ex hypothesi the claimant was working, became ill, claimed ESA and then got better on day X. On day X + 11, they found work. What are we to suppose your client was doing between Day X and Day X + 11? The job presumably didn’t fall out of the sky, so we assume that the claimant must have been looking for work in some sense. Why is it not then possible for your client to retain status as a work-seeker for that period of only 11 days? A failure to claim jobseekers allowance during that period is unlikely to be fatal to retention of status. The claimant had not “withdrawn from the labour market” in the terminology.

In any event, it may well be that the failure to adjourn or consider adjourning amounts to an error of law. Once it became apparent to the Judge that there was (apparently) an unaccounted for gap of just 11 days, was it not necessary to consider giving the claimant a fresh opportunity to attend to give specific evidence on that point? It is a different matter to refuse to adjourn when the facts are completely at large to refusing to adjourn when the appeal turns only on one specific and narrow point on which the claimant may well be able to give useful evidence.

Please do feel free to send over the SOR, or send it to CPAG, if you need some help with the grounds. I do think, albeit from a distance and with limited info, that it sounds like you have a strong case here.

Thanks Elliot

I am seeing the client this morning. As long as she agrees (and I am sure she will) I will DM you later. I did argue at the hearing that client clearly didn’t suddenly turn up at a full time job, so must have been seeking work after her ESA claim ended, for whatever reason that was. It transpires that she had failed WCA - she told me the letter told her she was fit for work so she went out to get a job. Personally, I thought and still think that 11 days to get an ESA decision, go out; apply for; and start a full time job is pretty good going, but there you go

Agree with what Elliot has to say on this. Am also happy to assist with a look over the SoR if you wish Brian, though in saying that it shouldn’t be taken that Elliot wouldn’t give you a good take on it, but maybe two heads etc….

Also - not being nit-picky and it’s clearly a typo, but this,

Why is it not then possible for your client to retain status as a work-seeker for that period of only 11 days? A failure to claim jobseekers allowance during that period is unlikely to be fatal to retention of status.

should have read ‘worker’. Think worth correcting in case (as sometimes happens) someone else with less experience is looking at the thread for guidance in the future.

My own take on the refusal to set-aside potential error of law, is that it might take more to argue that point successfully than it appears at first glance. Yes, on the face of it, it appears open and shut - the appeal turned on a gap of 11 days and, due to a misunderstanding, the appellant wasn’t there to give evidence on the point. However, things that will need to be covered are;

1. - the representative was there - did he request an adjournment because the appellant was absent or did he indicate he was happy to proceed?

2. - did the significance of the 11 day gap in the mind of the tribunal become apparent during the course of the hearing? If so, did the rep ask for an adjournment at that point so the appellant could give evidence?

3. - Or was it the case that it was only when the SoR was received that the significance of the gap in the tribunal’s thinking was revealed?

If it’s something along the lines of 3, then whilst there is a rule 37 set-aside argument, you’re probably going to need to bolster this with arguments about a continuing duty to consider whether it was in the interests of justice to proceed in the absence of the appellant/whether she was denied a fair hearing (rule 31, rule 2) and whether the tribunal made sufficient findings of fact/whether its findings of fact are supported by the evidence.

Another thought - and I’m possibly over-thinking this -

Elliot Kent - 04 December 2019 07:50 PM

So the “gap” was 11 days between an ESA award ending and a job starting?

I think it is likely that the reasoning is erroneous. The conditions of entitlement for ESA and the conditions for retention of a right of residence on the grounds of temporary incapacity are not interchangeable and the latter is more generous than the former - see CIS/4304/2007 and HK v SSWP (ESA) [2017] UKUT 421 (AAC) - the cessation of ESA does not provide a safe basis for concluding that the claimant also ceased to be temporarily incapable of work. Did the Judge actually engage with and explore the question of whether the claimant had ceased to meet the EU law conditions for retention? Was there an evidential basis for concluding that the claimant in fact suddenly got better so as to create the gap?

- on the specific facts of this case, isn’t there a danger of this cutting both ways? - i.e. as Elliot rightly says, the test of whether a person is temporarily incapable of work (and thus retains worker status on that basis) is a test in EU law. It does not require that a person claims the relevant sickness benefit in the host member state (in this case ESA) much less that they satisfy any test that the host member state imposes as to the threshold of incapacity required before that benefit is payable (in this case the WCA). All that is required is medical evidence confirming the temporary incapacity. That being so, on the facts of this particular case, might it not have been open to the tribunal (or open to an unsympathetic UT on appeal) to find the ‘gap’ was one greater than 11 days? As Elliot says in respect of the client’s workseeking, the job didn’t fall from the sky on day 11, but by the same token, neither did the client miraculously rise from her sick bed on the day of the WCA?

Was there medical evidence before the tribunal - other than receipt of ESA - to indicate temporary incapacity for work at least up to the WCA (and ideally beyond)?

I will DM you both but the short answer to the setting aside issue, and I wasn’t really looking at it from the point of view of appealing that decision, is that I only recorded that the judge wanted to hear the case because a whole session had been set aside for it. The hearing was actually in May and a lot has happened since then, so I can’t remember precisely what went on during the hearing. I certainly didn’t feel that the judge found any particular issue specifically with the 11 day period and I came out (from memory) thinking that it was more likely that the appeal would succeed than not

In this specific case were you trying to argue that the client had gained a permanent right to reside?

Yes, as could not show that she had retained worker status at point she claimed Income Support. She was awarded IS on the basis of a derivative right to reside but ,when that child left her household, DWP decided she no longer had R2R on any basis

Last week I successfully used the Gubeladze case (TG v SSWP) where it was decided that not only was the extension of the Worker Registration Scheme illegal beyond 2009 that “factual residence” rather than DWP’s terminology “legally resident” should apply. For my case I had a three month period when the client was not working or claiming JSA due to living with a partner in full time employment and the Judge accepted that para 92 as I alluded to was the pertinent deciding factor.

The DWP had filed a supplementary submission, as this case had been hanging around since 2015 pending the TG decision, and simply confirmed that all periods of work from 1/5/09 were now allowed. They made no comment on the “factual residence” aspect of the decision even when I submitted my supplementary submission in response. 

The Judge allowed the appeal. The DWP PO appeared to accept this as initially when I spoke to him prior to the hearing and mentioned it his response was simply that he was happy for the Judge to consider, eg - he didn’t have a view.

Hope this helps.

Thank you for your post, although I am not sure how TG v SSWP can assist my client as that only applies to permanent residence under Article 17 rather than, as would have to be the case for my client, Article 16. A permanent R2R under Article 16 does require a continuous period of 5 years where a person has resided “legally”, that is to say in accordance with Article 7. TG emphasizes that there is a difference between Articles 16 and 17

Brian JB - 10 December 2019 04:37 PM

Thank you for your post, although I am not sure how TG v SSWP can assist my client as that only applies to permanent residence under Article 17 rather than, as would have to be the case for my client, Article 16. A permanent R2R under Article 16 does require a continuous period of 5 years where a person has resided “legally”, that is to say in accordance with Article 7. TG emphasizes that there is a difference between Articles 16 and 17

Quite. Para 92 of the Supreme Court’s decision in Gubeladze demonstrates why the submission is incorrect in the context of 5 years residence cases.

“For the reasons set out above, in our judgment the Court of Appeal erred in its interpretation of article 17(1). Judge Ward arrived at a correct interpretation of that provision, in holding that residence in article 17(1) refers to factual residence rather than “legal residence” as required under article 16(1), as interpreted by the CJEU in the Ziolkowski judgment.”

If you are relying on Article 16 - i.e. 5 years residence - it needs to be lawful i.e. in terms of the Directive.

If you are relying on Article 17(1)(a) (or 17(1)(b) per SSWP v NZ (ESA)[2019] UKUT 250 (AAC)) then it needs to be actual rather than lawful.

Expect an SOR is all I’d say…

Just an update - appeal allowed at UT and decision substituted that client entitled to IS. Thanks to all who contributed to the thread

Brian JB - 18 August 2020 04:37 PM

Just an update - appeal allowed at UT and decision substituted that client entitled to IS. Thanks to all who contributed to the thread

Good to hear that Brian - pleased you got it sorted out as it was a bad decision.