Retaining worker status for benefit purposes

Jacqui Loughrey, social security adviser at Law Centre (NI), reviews a recent case which examines the definition of worker in European law.

In joint decisions CH/3314/2005 and CIS/3315/2005, Commissioner Rowland, when considering the question of when a person could retain his/her status as a worker for the purposes of Income Support or Income-based Jobseeker's Allowance determined that this is only permitted in circumstances in which the person is seeking work that without Working Tax Credit, would produce an income equivalent to his/her applicable amount for benefit purposes plus the cost of his/her rent. In other words, a person who has to restrict the weekly hours worked for whatever reason and so in turn becomes dependent on means tested benefits cannot rely upon the protection afforded by European law in order to establish that he/she retains worker status.

Although the Commissioner retracted somewhat from this position in a subsequent decision, CJSA/1475/2006, disputes can arise in cases involving the question of whether work in which a person has been engaged is sufficient to enable him/her to retain his/her status as a worker if unable to work for any one of a number of reasons eg sickness or unemployment.

Below is a summary of a Law Centre (NI) case which involves this issue. This case, through discussions with the Department, resulted in the disallowance decision being revised and entitlement to Income Support established.

Case summary

The appellant in this case (Ms X) is a Slovakian national who came to live and work in Northern Ireland in May 2004.

Having secured employment in July 2004 (and in accordance with the requirement for nationals from any of the A8 states seeking to obtain full EU rights), she registered her employment with the Home Office Worker’s Registration Scheme in September of that year.

Having become incapable of work she claimed Incapacity Benefit from July 2006 and as she did not have sufficient National Insurance contributions, her claim was treated as a ‘Credits Only’ case. Hence she claimed Income Support on 7 August 2006.

She remained continuously employed with the same employer for eleven hours a week until she resigned in November 2006.

Relevant legal issues

In supporting her appeal from the decision that she was not entitled to benefit on the basis that she was a person from abroad, and therefore had an applicable amount of nil, it was contended that when she made her claim to Income Support on 7 August 2006, Ms X was entitled on the basis that she met the criteria in Section 21AA(4)(a) of the Income Support (General) Regulations (NI) 1987 in that she was a worker. Either Ms X was a worker in that when she claimed she was still in employment, or alternatively she retained her worker status on the basis that she was temporarily incapable of work in accordance with Article 7(3) (a) of Council Directive 2004/38 EC (and Regulation 6(2)(a) of the Immigration (EEA) Regulations 2006). In either event, she was not a person from abroad as defined in Section 21AA (4) (a) above.

Regulation 21AA(4)(a) of the Income Support Regulations (NI) 1987 states:

(4) ‘A claimant is not a person from abroad if he is –

(a) a worker for the purposes of Council Directive No. 2004/38/EC;’

In particular, Article 7(3)(a) was cited which states that a worker may still retain worker status if temporarily incapable of work.

As Ms X was still employed at the date of her claim to benefit, 7 August 2006, it was argued that she was clearly a worker. The term ‘worker’ is a European concept and is interpreted in a flexible way. A person may be a worker whether in full or part-time work. From case law, the following general principles apply in the interpretation of ‘worker’ as it is to be defined in the European context:

• work must be ‘effective and genuine work’ and not merely ‘marginal and ancillary’ (Levin Case 53/81 and Kempf Case 139/85);
• it includes part-time work even if ‘topped up’ with benefits (Kempf);
• there must be an employment relationship where the worker accepts directions from another and the work is carried out in return for remuneration. (Lawrie-Blum Case 66/85);
• pay can be by payment in kind (Steymann [1988] ECR 6159).

In a domestic case, R(IS) 12/98, Commissioner Mesher held that a French national working as an au pair for only five weeks at thirteen hours a week for £35 was a worker.

In light of this case law, it was submitted that having worked eleven hours a week and having been employed for over two years (and having only resigned from her job in November 2006), she was clearly a worker but if not accepted, then, in the alternative, she retained her worker status on the grounds that she was temporarily incapable of work and she was therefore not a 'person from abroad' and as such was entitled to Income Support. These arguments were eventually accepted by the decision makers.

As the question of what constitutes genuine and effective work remains an issue, please contact Law Centre (NI) if a client is disallowed Income Support or Income-based Jobseeker’s Allowance on these grounds.