Decision of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (made on 23 December 2010 at Birmingham under reference SC024/10/16441) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.
The decision is: on her claim for income support (made on 17 August 2010 and refused on 16 September 2010), Mrs Y was a person from abroad. Her applicable amount for income support purposes was, accordingly, nil and she was not entitled to income support.
Reasons for Decision
A.	History and background
	Mrs Y’s personal circumstances
1.	Mrs Y is Dutch. She came to the United Kingdom on 29 November 2000. Neither she nor she husband has worked in this country. He received a jobseeker's allowance until 2004, when he was advised to sign off and claim income support, because his wife had been awarded a carer’s allowance. In addition to the couple’s six children (born between 1997 and 2006), they fostered another child from 2002 to 2008, for which they received an allowance.
	The claim for income support 
2.	Mrs Y claimed income support as a carer on 17 August 2010. The Secretary of State refused the claim on 16 September 2010 on the ground that the claimant was a person from abroad. As such, she had an applicable amount of nil and was not entitled to income support. 
	The appeal to the First-tier Tribunal 
3.	Mrs Y exercised her right of appeal to the First-tier Tribunal.  She was represented by JR Jones solicitors. They argued that she had a permanent right to reside as someone who had been a service provider. The service in question was that she had acted as foster carer for a child who lived with the family. The tribunal allowed the appeal, but ignored this argument. Instead, it decided that she had a permanent right to reside having lived in this country continuously since 2000. It cited as authority for this the decision of the Court of Justice of the European Union in Secretary of State for Work and Pensions v Lassal (Case C-162/09). 
	The appeal to the Upper Tribunal
4.	I gave the Secretary of State permission to appeal against that decision, saying:
the tribunal appears to have misdirected itself that mere residence is sufficient to found a permanent right to reside under Directive 2004/38/EC.
B.	Residence of itself does not give rise to a permanent right to reside 
5.	It is now common ground that the tribunal misdirected itself in law on this issue. Lassal was concerned with a different point. The permanent right to reside was introduced by Directive 2004/38/EC. Lassal decided that residence before the date when the Directive came into force could count in order to establish permanent residence. It did not decide that merely residing was sufficient. There is no basis for that proposition in EU legislation. Nor is there any caselaw of the Court of Justice of the European Union to that effect. Indeed, the reasoning of all the cases in which the Court has considered permanent residence is contrary to it. 
6.	That leaves the question whether the tribunal may have come to the right decision but for the wrong reason. 
C.	Why Mrs Y has not attained permanent residence 
7.	Mrs Y’s solicitors have argued she had a right to reside on the combined effect of her husband being a jobseeker and their being foster carers. There are two ways to analyse that argument. 
8.	One analysis is that Mrs Y by fostering was providing a service under Article 56 the Treaty on the Functioning of the European Union (TFEU). This analysis does not work. That Article only applies if a person is residing in one member State and providing a service in another. In this case, both Mrs Y and the foster child have always been resident in the United Kingdom at material times. 
9.	The other analysis is that Mrs Y was established as a self-employed person providing the services of a carer to the foster child. This is under Article 49 TFEU. A self-employed person is defined in the same way as a worker, with appropriate modifications. I summarised some of the caselaw on worker status in CIS/1793/2007:
‘11.	Worker is a European concept. That means that it is defined by European law, through the decisions of the European Court of Justice. Member States cannot adopt their own definitions of the concept for European purposes. See Hoekstra v Bestuur der Bedrijfsvereniging voor Dertailhandel en Ambachten [1964] ECR 177.
…
13.	Work means the performance of services under the direction of another for remuneration. See Lawrie-Blum v Land Baden-Wurttemberg [1986] ECR 2121, paragraph 17. The services must be in pursuit of an economic activity. See Levin v Staatssecretaris van Justitie [1982] ECR 1035, paragraph 17. The evidence of the few jobs that the claimant had been 2001 and 2004 suggests that they satisfied these conditions.
14.	The temporary nature of the jobs is relevant. In Lawrie-Blum, the Court included in its definition of work that it should be for a certain period of time. However, the Court has held that work for any given period is not essential. See Lair v Universitat Hannover [1988] ECR 3161, paragraph 42. The Court has applied the same test whether the activity undertaken is part-time, irregular or intermittent: does it represent the pursuit of an effective and genuine economic activity? See Levin paragraph 11. Activities which are on such a small scale as to be purely marginal and ancillary do not amount to work. See Levin paragraph 17. In Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027, the work that was irregular and intermittent. It held (at paragraphs 14 and 15) that, in determining whether activities are purely marginal and ancillary, regard may be had to their irregular nature and limited duration. I consider that the same test is appropriate if the activity undertaken is temporary. The Court’s reference to the ‘very limited number of hours in a labour relationship’ shows that the test applied to temporary work.’
10.	The essence of being a worker or self-employed is that the person is engaged in some form of economic activity. Fostering is not an economic activity. The couple did receive an allowance for fostering, but that allowance is intended to cover the time and cost of caring for the child. It is not a payment to the carers for their services in a commercial sense. Fostering is not properly described as a trade, profession or business. It is the nature of fostering that a child comes to live as a member of a family with a payment being made to cover the costs. It is not comparable to the provision of services by someone who is self-employed.
11.	As Mrs Y was not self-employed, she cannot claim a right to reside on that basis. That prevents her acquiring a permanent right to reside. I do not, therefore, need to deal with any right that might arise from her husband’s status as a jobseeker. 
D.	Conclusion
12.	The First-tier Tribunal was wrong to decide that Mrs Y had a permanent right to reside. There is no basis on which she has acquired that right. The Secretary of State was correct to refuse her claim for income support and I have so decided. 

Signed on original
on 8 June 2012	Edward Jacobs
Upper Tribunal Judge