Universal credit for EU jobseekers and their family members in the UK

Martin Williams, CPAG

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Universal credit – what it replaces

income support income based JSA income related ESA universal credit

child tax credit working tax credit housing benefit

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UC: residence rules S. 4(1)(c) Welfare Reform Act 2012- claimant must

be in Great Britain S.4(5)(a) “in [GB]” can be defined in regulations Roughly speaking Reg 9 Universal Credit Regs 2013

(draft) provides a claimant is not in GB unless: Habitually resident; and Has a right to reside (other than during initial 3 months

or Zambrano type right- latter very arguably unlawful (if not the whole test…)).

Reg 92 provides if only R2R is as a workseeker (or family member of same) then must meet all work requirements (eg is a person to whom none of s. 19, 20 or 21 WRA applies).

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UC: meet all work requirements (1)

Meeting all work requirements is an onerous requirement. The requirements are: Work search Work availability Work preparation (attend the “work programme”) Work focused interviews

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UC: meet all work requirements (2)

WORK SEARCH: Taking all reasonable action to obtain work. Decision Maker can direct specific actions Need to search for all work (except for first 3

months and if have specific health problems). Duration…. See next slide

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UC: meet all work requirements (3)

WORK SEARCH DURATION: Basic requirement is to do it 35 hours per week

(can be modified). Formula for # of hours =

1. Calculate expected hours of work 2. Calculate any relevant deductions 3. Number of hours searching for work = 1 - 2

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UC: meet all work requirements (4)

ONE SOURCE OF HOPE…. Even where all work requirements apply they

can be waived in any event when (amongst other situations) (reg 99): Victim of Domestic Violence (max 13 weeks) Attending court/tribunal Partner/kid died within last 6 months Drug/alcohol recovery (6 months) At DM discretion if- temp. child care, public duty,

work prep, temp. change of circs.

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What it means for EU jobseekers

The UK partner of a UK jobseeker would not have to meet all work requirements if…. Sick (limited capability for work) Caring for children under 5 Caring for a severely disabled person Over age at which woman retires (man or woman) Late stage pregnancy(and other similar groups it is unreasonable to expect to seek work on any footing…)

But reg. 92 has the effect that if only right of residence a jobseeker then partner of claimant will have to meet those rules.

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Universal credit – under Reg 883/2004

UK state view is that UC is neither “social security” nor a “special non contributory benefit” under EU Reg 883/2004.

SNCB’s are defined at Art. 70(2) 883/2004. This requires: Intention is to provide supplementary, substitute or

ancillary cover to the risks covered by various branches of social security set out in Art. 3; or

Is solely concerned with specific protection for disabled; and

Financed from general taxation / not dependent on contributions; and

Listed in Annex X9

Universal credit – under 883/2004

The basic conditions of entitlement are not specific to any of the risks- eg none of the risks need to have manifested themselves in order to gain entitlement.

Similar benefits in other states, such as the minimex (Belgium) have not generally been thought to be SNCBs.

(query how similar? … I’m not Belgian)

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Do we care how it is classified?

On the present state of UK caselaw it is difficult to see what benefit there is to be had in classification as an SNCB

There are two potential routes by which being an SNCB could help a migrant claimant obtain the benefit but both rejected in UK courts/tribunals.

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Argument 1: Anti-discrimination

Art. 3 non discrimination provision held not to bite in Patmalniece v SSWP [2011] UKSC 11 (could be overturned in a different case by the CJEU).

Supreme Court held: the discrimination to be considered was that produced

by the “habitual residence test” (which includes the right to reside requirement)

Some UK citizens would fail the non right to reside part of the HRT.

The test was therefore not directly discriminatory and capable of justification.

In Bressol v Gouvernement de la Communauté Française (Case C-73/08) [2010] 3 CMLR 559 the CJEU accepted such a two part residence test could be justified.

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Argument 2: entitled in state of residence

Art. 70 states SNCBs “shall be provided exclusively in the MS in which the persons concerned reside”

Art. 1(j) “residence” means the place in which the person is habitually resident.

C-90/97 Swaddling [1999] ECR I-1075 the UK were forbidden from adding an extra condition to the EU concept of habitual residence.

Continued…

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Argument 2: entitled in state of residence

In SSWP v JS (IS) [2010] UKUT 131 (AAC) the Upper Tribunal accepted that was the basis of Swaddling: 37. It appears therefore that the Court’s

decision was based on it being incompatible with European law that domestic law, when needing to apply the test of habitual residence, a crucial part of the scheme of Article 10a, for the purposes of Regulation 1408/71, should apply a test of habitual residence containing a further requirement not required (or permitted) by European law.

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Argument 2…continued

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However, the Judge went on to find: [the] argument [for the claimant] can only arise because of the

particular form taken by regulation 21AA of the 1987 Regulations. [….] A two stage legislative test which consisted of (a) does the claimant have the right to reside? and (b) is she habitually resident as defined in Swaddling? would, on authorities binding on the Upper Tribunal and subject to issues of proportionality, be lawful. What regulation 21AA of the 1987 Regulations does [..] is partially to elide the tests as a matter of drafting so that having the right to reside is a necessary precondition to whether a person can be habitually resident, but both elements remain. For all the particular quirks of the drafting of the UK domestic legislation, the two stage test is in substance what it creates. The particular form of the UK legislation should not be permitted to invalidate provisions which are in substance compatible with European law.

[underlining added] JS has been referred as Saint-Prix although this is not a question put

by the Supreme Court to the CJEU

Argument 1 and 2 together?

So, in JS the Upper Tribunal held that it could not be the case that simply because the right to reside condition had been included as part of the condition of having habitual residence it was unlawful.

BUT… We have seen that in Patmalniece the thing that

saved the right to reside test from being held unlawful on the basis that it was directly discriminatory was precisely its location as part of a composite test of habitual residence.

Can the two approaches be logically consistent?16

A possible Argument 3 for some?

Art. 24(2) Directive 2004/38 provides a derogation from the equal treatment rule in Article 24(1) in respect of social assistance for those whose only right of residence is as a jobseeker.

Art. 7(1)(b) provides an extended right of residence for those who have sufficient resources not to be a burden on social assistance (and comp. health insurance).

Pending case Brey C-140/12 will consider whether an Austrian SNCB counts as “social assistance” when working out if claimant has sufficient resources to count as self-sufficient for purposes Art. 7(1) Directive 2004/38.

The significance of this is potentially: Time spent in receipt of an SNCB equal to social assistance levels might

be time with a self sufficient right of residence… gaining a potential permanent right under Art. 16.

Could it also be the case that if it is not social assistance the derogation does not bite? What would that mean?

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Universal Credit – could bits be an SNCB?

It may be possible to argue that UC could be an SNCB where the claimant is in a particular situation (eg pregnant).

The argument is still difficult as pregnancy is not a condition of entitlement.

…. In any event unless Argument 1 and/or 2 succeed (or another argument is made) then difficult to see why a migrant to the UK should care.

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Does UC facilitate access to labour market

Joined Cases Vatsouras (C-22/08) and Josif Koupatantze (C-23/08) [2009] ECR I-04585, the Court of Justice held that: “40. […] nationals of the Member States seeking employment

in another Member State who have established real links with the labour market of that State can rely on Article 39(2) EC in order to receive a benefit of a financial nature intended to facilitate access to the labour market.”

Vatsouras provides the national tribunal must: 41. [….] assess the constituent elements of that benefit, in

particular its purposes and the conditions subject to which it is granted” in order to determine whether it is a benefit intended to facilitate access to the labour market.

The Court was clear that such a benefit is not “social assistance” for purposes Art.24 Directive 2004/38 (para 45)

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UC assessing the elements… UC does not have a condition of entitlement about work search. BUT, to obtain the full amount almost all claimants not actually

earning (roughly) 35x minimum wage must do some or all of: Attend work focused interviews Work preparation (attend schemes etc to become job ready) Work search (up to 35 hours per week) Be available for work

AND, committing to engage in such activity if it applies IS a basic condition of entitlement (s.4(1)(e) Welfare Reform Act 2012)

AND of 29 sections in the Welfare Reform Act 2012 which provide for UC, at least 16 deal in one way or another with work related requirements.

The stated aims in much Parliamentary material is to promote work incentives.

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Consequences…

If Universal Credit is properly regarded as facilitating access to the labour market then an EEA jobseeker claiming it deserves to have the same rules applied to them as are applied to a UK jobseeker

That would certainly seem to prevent the differential treatment of the partners of jobseekers.

Could it also mean that if an EEA jobseeker is themselves sick or pregnant etc. then UC must still be regarded as available to them on an equal footing? (potential difficulty with whether a jobseeker)

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