Universal credit for EU jobseekers
and their family members in the UK
Martin Williams, CPAG
1
Universal credit – what it replaces
income support
income based JSA
income related ESA
child tax credit
working tax credit
housing benefit
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universal credit
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:
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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:
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Work
Work
Work
Work
search
availability
preparation (attend the “work programme”)
focused interviews
UC: meet all work requirements (2)
WORK SEARCH:
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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
UC: meet all work requirements (3)
WORK SEARCH DURATION:
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Basic requirement is to do it 35 hours per week (can
be modified).
Formula for # of hours =
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1. Calculate expected hours of work
2. Calculate any relevant deductions
3. Number of hours searching for work = 1 - 2
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):
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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.
What it means for EU jobseekers
The UK partner of a UK jobseeker would not
have to meet all work requirements if….
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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…)
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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:
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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 X
Universal credit – under 883/2004
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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.
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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?
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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
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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:
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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.
Argument 2: entitled in state of residence
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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
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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.
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Can the two approaches be logically consistent?
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A possible Argument 3 for some?
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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:
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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?
Universal Credit – could bits be an SNCB?
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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
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Joined Cases Vatsouras (C-22/08) and Josif
Koupatantze (C-23/08) [2009] ECR I-04585, the Court of
Justice held that:
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Vatsouras provides the national tribunal must:
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“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.”
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…
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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:
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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…
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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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