Exercise of treaty rights by EU nationals

What are local authorities' social care obligations to non-UK EC and EEA nationals? Jonathan Auburn and Ben Tankel review recent caselaw on the issue.

One issue which causes significant confusion is the extent to which non-UK European (EEA or EU) nationals are eligible to receive social care and accommodation.

There have been a number of recent developments in other areas, including housing and employment, which provide some assistance in clarifying the bounds of local authorities' social care obligation to non-UK EC and EEA nationals.

To begin though, it is necessary to know the legislative framework in which the issue arises.

Schedule 3 of the Nationality, Immigration and Asylum Act 2002 has effect pursuant to s.54 of that Act. Under this Schedule, certain types of persons subject to immigration control may not receive support from local authorities pursuant to listed statutory provisions. Local authorities are barred from supporting such people pursuant to the main community care provisions, including ss.21, 29 of the National Assistance Act 1948, ss.17, 23C-24B of the Children Act 1989 and ss.188 and 204 of the Housing Act 1996.

Paragraph 3 of the Schedule provides exceptions where it is necessary to provide assistance in order to prevent an infringement of (a) the person’s ECHR rights, and (b) an exercise of EU Treaty rights.

Article 18 of the EC Treaty provides for a right of free movement within the EU. Article 45 TFEU provides for freedom of movement for “workers” within the EU.

The Immigration (EEA) Regulations 2006 (SI 2006/1003) provide for categories of persons who are still eligible for assistance despite being from abroad. By Regulation 6(1), a “worker” is a qualified person. By Reg 6(2), a person who is no longer working shall not cease to be treated as a worker for this purpose if he is temporarily unable to work as the result of an illness or accident. By Reg 4(1)(a) "worker" means a worker within the meaning of Article 45 TFEU.

In Konodyba v RB Kensington and Chelsea [2012] EWCA Civ 982 the Court of Appeal held that a local authority had acted lawfully in determining that a Polish national who last held a job in 2006 and claimed to have been self-employed for periods afterwards was not still actively engaged with the labour market as, on the facts of that case, her inability to work was more than temporary. The correct test was whether there were realistic prospects of the person being able to return to work and therefore remaining engaged with the labour market. As there was not a realistic prospect of her returning to work within a reasonable time, she was not a “worker” and not exercising Treaty rights, thus not entitled to local authority support (the case was a housing case, concerning the 1996 Act).

Similarly in Samin v City of Westminster [2012] EWCA Civ 1468 the claimant had last worked in 2006 and had been in receipt of state benefits since then. The Court of Appeal held that the local authority officer had been entitled to conclude that the appellant had not been temporarily unable to work (ie the inability was more than temporary). He was in poor health, suffering clinical depression due to traumatic experiences in the army, had attempted suicide and was on medication. He had scarcely worked at all in the time that he had been in the UK, his disabling illness had plainly been of very long standing and the prospect of it changing could only have been regarded as unrealistic. Thus he was not exercising Treaty rights and not entitled to local authority support (again this was a housing case, concerning the 1996 Act).

However in Saint Prix v Secretary of State for Work and Pensions [2013] 1 All ER 752 the Supreme Court made a reference to the ECJ to obtain guidance as to the period of time out of work or job-seeking that was compatible with still being regarded as a “worker”; there in the context of a woman who gave up work because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth.

The general message of these cases is that if a person’s illness is of short duration then it is compatible with a temporary absence from the labour market and they may still be exercising Treaty rights, thus enabling them to utilise the paragraph 3 exception to Schedule 3 of the Nationality, Immigration and Asylum Act 2002. However a lengthy absence from work and/or serious illness may lead the court to say that the inability to work is more than temporary, thus they are not a “worker” and not exercising EU Treaty rights.

Finally, there may be some tension between a claimant’s case regarding their community care needs (which usually seeks to emphasise what the claimant in unable to do due to illness or disability) and their claim to be exempt from Schedule 3 as they are exercising EU Treaty rights (which seek to establish that their absence is temporary and they are still involved in the labour market).

Jonathan Auburn and Benjamin Tankel are barristers at 39 Essex Street.