Right to reside and incapacity for work

Fiona Seymour considers how former workers can retain a right to reside when temporarily or permanently incapable of work

This article was originally published in the April 2018 issue of Adviser magazine and was correct at the date of publishing.

Means-tested benefits (as well as Child Benefit and Child Tax Credit) require a claimant to have a ‘right to reside’ in order to qualify. European Economic Area (EEA) nationals who are workers or self-employed people (i.e. those whose work is accepted as being ‘genuine and effective’) have such a right to reside — indeed, they are exempt completely from the habitual residence test that would normally apply. The definition of ‘worker’ (and therefore the right to reside) continues during any period when the claimant is ‘temporarily’ unable to work as the result of an illness or accident — see Article 7(3) of Directive 2004/38 of the European Commission and Regulation 6(2)(a) of the Immigration (EEA) Regulations 2016 (IR 2016). (The status of worker can also continue if the claimant is involuntarily unemployed and looking for work, but that is outside the scope of this article.)

There is no further definition within regulations that explains how to assess a person’s inability to work or whether that inability is ‘temporary’. The judge touched on this issue in CIS/4304/2007, when he determined that inability to work was a concept used in EU legislation, and in order to ensure uniformity in that legislation between member states, it had to be interpreted in the same way throughout the EU. Thus, the test could not depend on the domestic legislation governing UK benefits. Indeed, in CE/2386/16, the judge held that the claimant could still be ‘temporarily’ unable to work even after she had failed the limited capability for work test in Employment and Support Allowance (ESA) and signed on for Jobseeker’s Allowance (JSA):

“While I note the view of the DWP’s examining doctor that the claimant did not have limited capability for work, I am required to apply a more general concept of incapacity for work, capable of being applied across the EU, not the more specific domestic statutory test of limited capability for work and I do not regard the latter as determinative. It is unlikely that the claimant would have been in a position to challenge the DWP’s decision and, having been found not to have limited capability for work, she may have felt she had little choice but to make a claim for JSA. In my view the claimant was incapable of work throughout the time from when her work … finished.”

The Court of Appeal considered the matter of ‘temporary’ incapacity in more detail in the case of Samin & City of Westminster [2012] EWCA Civ 1468. They considered previous case law: SSHD v FMB, which held that, on the facts of that case, there had been no error in deciding that a four-year absence from work was capable of being temporary; and De Brito v SSHD (approved in Konodyba v RB Kensington and Chelsea), which held that the test of whether an absence was temporary was an objective one which amounted to a question of fact in each case. To determine the question, it was not unreasonable to ask whether there were any realistic prospects of a return to work. The court therefore rejected the claimant’s argument that the test for temporary absence could be satisfied if there was ‘any chance’ of the claimant returning to work:

“Temporary is to be contrasted with permanent. The question is one of fact in every case; plainly the circumstances which will fall to be examined will vary infinitely. It will generally be helpful to ask whether there is or is not a realistic prospect of a return to work. It will generally not be helpful to ask if the interruption is indefinite; an indefinite absence from work may well not be temporary, but it might be, for example if an injured man is awaiting surgery which can be expected to restore him to fitness to work, but the date when it will be available is uncertain.”

CIS/3890/2005 and CF/575/2016 further confirm that it is the ‘inability to work’ which must be temporary and not the illness itself.

The provision to ‘retain’ worker status applies to a person who is ‘no longer working’, so the inability to work must have existed from the end of the employment. CIS/4307/07 held that this could also apply where a person had claimed JSA immediately after finishing work (and so retained their worker status on grounds of involuntary unemployment) and then became sick. Thus, the fact that there may be a gap between finishing work and becoming temporarily incapable of work does not prevent a claimant from relying on this provision, as long as they were a person with retained worker status during the gap.

In addition, in CE/1283/2017, the judge held that a delay between work ending and the claim for ESA was not fatal to retaining worker status; while a successful ESA claim may well be viewed as evidence of a temporary inability to work, there was no requirement within Reg 6(2)(a) IR 2016 for a claim to benefit to have been made.

If a person’s inability to work is not accepted as being ‘temporary’, then they will not be a person who retains worker status under Reg 6(2)(a). However, they may instead be a person with a permanent right to reside under Reg 5(3) & 15(1)(c ) IR 2016. This applies if the person terminates their activity in the UK as a worker as a result of permanent incapacity to work, as long as they had resided in the UK for more than two years prior to the termination. Such arguments as to whether an incapacity is temporary or permanent will again be relevant.

In CE/2386/16, the judge gave reasons for his findings that, by a certain date, the claimant’s temporary incapacity had become permanent:

“The evidence in my view shows a continuing and more entrenched instability and inability to engage with the treatment which might have brought about improvements, a factor to which it is legitimate to have regard (Konodyba). On the available evidence, managing the condition (the client in this case had mental health difficulties) requires compliance with medication and abstinence from illicit substances, two things which the claimant has consistently not been able to do on a sustained basis.”

The Court of Appeal have held that the requirement to have ‘resided’ in the UK is not satisfied by virtue of mere residence alone, but only if the residence was ‘legal’, i.e. during a period when the client had a right to reside in accordance with EEA regulations (SSWP v Gubeladze [2017] EWCA Civ 1751). That case was concerned with a permanent right to reside on grounds of retirement, but the equivalent provision in relation to a permanent incapacity for work seems likely to be decided accordingly (see CE/98/2015). However, it is likely that Gubeladze will be appealed to the Supreme Court. UPDATE: the Supreme Court have now heard the Gubeladze case and decided that mere residence is sufficient (SSWP V Gubeladze [2019] UKSC 31).

Summary

• Incapacity for work does not depend on the claimant qualifying for ESA, and a claim for ESA is not required.
• The test of whether incapacity is ‘temporary’ or ‘permanent’ is objective and is a question of fact in each case.
• For incapacity to be accepted as ‘temporary’, there must be a realistic prospect of a return to work.
• It is the incapacity to work that must be ‘temporary’ and not the illness itself.
• A gap between work ending and becoming incapable of work is allowed, as long as the claimant retained their worker status during the gap.
• A temporary incapacity may become permanent after a period of time, e.g. if circumstances suggest there is no longer a realistic prospect of a return to work.
• The two years’ residence required for permanent incapacity must have been ‘legal’ residence, i.e. residence as a person with a right to reside. UPDATE: see comments above

Fiona Seymour works in the Expert Advice Team for Citizens Advice and is Benefits Subject Editor for Adviser.