Upper Tribunal Clarifies EU Worker Status Amid JSA Disallowances

SSWP v WN (rule17) [2018] UKUT 268 (AAC) CE/1320/2018

IN THE UPPER TRIBUNAL

Case No CE/1320/2017 ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision: I consent to the application by the Secretary of State to withdraw this appeal. A copy of this decision is to be placed on the Chamber’s website.

REASONS FOR DECISION

1. This appeal has raised matters concerning the effect upon the worker status of an EU national of a short disallowance from JSA on the ground that the claimant is adjudged not to have been “actively seeking work”.

2. Contrary to the submission made in her name to the First-tier Tribunal (“[NAME]”), the Secretary of State now accepts that an EU citizen who retains worker status by virtue of reg.6(2)(b) of the Immigration (European Economic Area) Regulations 2006 (as were then relevant) (“the 2006 Regulations”) will not lose that worker status merely because his or her JSA is disallowed on the grounds of “not actively seeking work”.

3. The Secretary of State has applied for permission to withdraw her appeal. Because the issue may arise in the context of other EU nationals also, who, unlike the present claimant, may not have professional assistance, and because the case has yielded some evidence which may be relevant in other cases, I indicated that, while I was minded to give consent, I considered it appropriate for the withdrawal decision to be placed on the Chamber’s website.

4. The claimant is a [NAME] in his late 50s. He had worked from 1 December 2011 to 1 April 2013 and then been in receipt of JSA from 8 April – 9 September 2013. From 10 to 23 September 2013 he was disallowed JSA on the grounds mentioned above. From 24 September 2013 to 13 January 2014 he was once again in receipt of JSA. From 14 to 27 January 2014 JSA was, once again, disallowed. JSA resumed from 28 January to 9 March 2014. There was a gap between 10 March and 14 April 2014. JSA resumed between 15 April 2014 and 23 March 2015. On 24 March 2015 he claimed ESA, which by a decision dated 21 April 2016 was refused.

5. On 15 April 2013 he had been admitted to hospital following a heart attack; he was discharged on 9 May 2013. I have not received evidence nor heard argument as to how the JSA claim continued in those circumstances: though regulation 55 of the Jobseeker’s Allowance Regulations 1996 was in force, that could apply only for up to 2 weeks and regulation 55ZA, which provided for longer periods of sickness, was not then in force. However, it does appear that the claim continued.

SSWP v WN (rule17) [2018] UKUT 268 (AAC) CE/1320/2018

6. Computer printouts in evidence before the [NAME] relating to the disallowances with effect from 10/9/13 and 14/1/14 cited an “AR Code” of CSN016 and CSN 015 respectively. [NAME] are used for DWP administrative purposes only. The decision-maker selects an AR code to identify the decision made and enters it on the computer system. The code is a system identifier to enable control of the decisions process and to generate associated system notifications (outcome decisions) to be issued to the claimant.

7. A list of the [NAME] and their apparent significance forms the Schedule to this decision. It will be observed that there are several areas of apparent overlap between the various codes.

8. An area for debate in the present case has been whether the claimant was made the subject of decisions imposing a sanction or whether, rather, his claim came to an end (“an entitlement decision”) and was subsequently resumed.

9. In the [NAME], JSA sanction and conditionality decisions are divided into five categories identified by a letter code, as set out in the Schedule. “CS” stands for Conditionality and Sanction decision, followed by a letter for the type of decision. “N” in “CSN” stands for conditionality not met, thus reflecting an entitlement decision (as opposed to a sanctions decision). Following a “CSN” entitlement decision, the claimant must reclaim JSA, but that is done by way of “rapid reclaim” if the new claim is made within 6 months of the previous claim. In such a case, the claimant does not complete a new claim form, but rather Form JSA1(ILS) to declare that there has been no change of circumstances. What the other categories of code stand for is set out in the relevant part of the Schedule: these are sanctions decisions.

10. While no definitive explanation could be provided to me of the difference between codes CSN015, CSN016 and CSN017, all reflect entitlement decisions on grounds of not actively seeking work. Code “CSM002” on the other hand reflects a medium level sanction penalty for not actively seeking work. As foreshadowed at [8], if a sanctions decision is imposed, the award continues but with a sanction; in a “CSN” case, entitlement ceases.

11.The [NAME]’s decision in favour of the claimant (put briefly) appeared to have conflated the various limbs of regulation 6(2) of the 2006 Regulations concerning when “worker” status is retained. However, while the Secretary of State maintains that the [NAME]’s reasoning was wrong, she no longer seeks to contend that its outcome decision was wrong. This is because she is no longer able to produce contemporaneous documents establishing what occurred at the material time and the relevant questions were not asked of the claimant at the [NAME].

12. I have accepted the application by the Secretary of State to withdraw her case, which is not opposed by the claimant’s representative. The Secretary of State no longer maintains what may have been regarded as an error in principle in the approach that had been put forward to the [NAME] and for his part,

SSWP v WN (rule17) [2018] UKUT 268 (AAC) CE/1320/2018

the claimant has succeeded in his aim of countering the original refusal of ESA on the ground that he lacked the right to reside. The Secretary of State will now need to consider the remaining aspects of his ESA claim.

CG Ward Judge of the Upper Tribunal 6 August 2018

SSWP v WN (rule17) [2018] UKUT 268 (AAC) CE/1320/2018

Schedule

SSWP v WN (rule17) [2018] UKUT 268 (AAC) CE/1320/2018

SSWP v WN (rule17) [2018] UKUT 268 (AAC) CE/1320/2018

SSWP v WN (rule17) [2018] UKUT 268 (AAC) CE/1320/2018

SSWP v WN (rule17) [2018] UKUT 268 (AAC) CE/1320/2018