West Law Report

Whether claimant is a worker

Posted in Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 17, 2009

Whether claimant is a worker
Court of Appeal
Published February 17, 2009
Barry v Southwark London Borough Council
Before Lady Justice Arden, Lord Justice Thomas and Lord Justice Lloyd
Judgment December 19, 2008

When determining whether a person claiming housing assistance had been unemployed for no more than six months and was a worker, a housing authority was entitled to look at his employment record in order to tell whether the work was effective and genuine, and not marginal and ancillary.

The Court of Appeal so held allowing the appeal of the claimant, Mohamed Barry, from the dismissal by Judge Welchman in Lambeth County Court on November 16, 2007 of his appeal from the refusal of the defendant, Southwark London Borough Council, to grant him housing assistance.

The council’s review officer had determined that Mr Barry, a citizen of The Netherlands, was not eligible under Part VII of the Housing Act 1996 on the ground he was not a worker under Community law.

The claimant had been unemployed and, while in receipt of jobseeker’s allowance, had taken casual work as a steward at the Wimbledon Tennis Championships in 2006.

He had suffered a serious accident in December 2006, as a result of which he was unable to work. His entitlement to the benefit of the council’s duties under the 1996 Act depended on whether he was a worker for the purposes of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations (SI 2006 No 1003). In turn, that required reference to the Immigration (European Economic Area) Regulations (SI 2006 No 1294).

Mr Richard Gordon and Mr Adrian Berry for Mr Barry; Ms Kerry Bretherton for Southwark.

LADY JUSTICE ARDEN said that the claimant submitted that the defendant authority had erred in law in not addressing his work history as a whole, and that the expression “worker” had a Community meaning which was concerned with freedom of movement, one of the fundamental freedoms; therefore, the term should not be interpreted restrictively: see Kempf v Staatsecretaris van Justitie (Case 139/85) ([1986] ECR 1741).

It was necessary to look at work history to tell whether the work was ancillary or marginal.

The claimant submitted that his earlier employment and his employment at Wimbledon could not be severed from his earlier employment history and that he retained the status of worker even if regard were had to his work at Wimbledon alone.

The defendant authority submitted that Community law gave the term “worker” a very wide interpretation: see Levin v Staatssec-retaris van Justitie (Case 53/81) ([1982] ECR 1035) and Lawrie-Blum v Land Baden-Württemberg (Case 66/85) ([1986] ECR 2121).

His Lordship said the judge had considered that the decision of the review officer was one of judgment which was not susceptible to review on appeal to the court.

However, he had not considered whether the prior employment history was a relevant factor in determining whether the claimant’s employment in the six-month period made him a worker for Community purposes. In addition, the work at Wimbledon was capable in itself of making the claimant a worker.

The review officer could not properly have come to any other conclusion and, therefore, had committed errors of law. Lord Justice Lloyd delivered a concurring judgment and Lord Justice Thomas agreed.

Solicitors: Pierce Glynn, Southwark; Ms Deborah Collins, Southwark.

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