JM v Secretary of State for Work and Pensions (CA)

For the coordination rules in Regulation (EC) 883/2004, registration as self-employed and payment of Class 2 contributions do not alone establish that a person is pursuing self-employment. There must be evidence of actual work. Whether a gap between engagements preserves self-employed status depends on the facts and the legal context.

A person who is forced to stop self-employment by sickness must, so far as necessary to claim sickness-related benefits, continue to be treated as pursuing that activity under article 11(3)(a). In a claim for carer’s allowance, the relevant illness is that of the person cared for. The claimant must show that the need to provide care required cessation of the work or the search for similar work.

JM v Secretary of State for Work and Pensions (CA) concerned a Polish pensioner living in the United Kingdom who claimed carer’s allowance after stopping occasional self-employed cleaning work in order to care for her seriously disabled granddaughter.

The Secretary of State decided that Poland was the competent Member State. The First-tier Tribunal dismissed the claimant’s appeal on 15 September 2014, finding that her irregular work did not amount to active self-employment. The claimant appealed with permission to the Upper Tribunal.

The central issue was whether she was pursuing self-employed activity in the United Kingdom from 2 August 2013, so that the United Kingdom, rather than Poland, was the competent state under Regulation (EC) 883/2004.

1. Appeal dismissed. The First-tier Tribunal had reached the correct result, although its reasoning may have been wrong and insufficiently supported by primary findings of fact.

2. Under articles 11(3)(a), 25 and 29(1) of Regulation (EC) 883/2004, the United Kingdom would be the competent state if the claimant were pursuing employed or self-employed activity there. If not, Poland was competent because it paid her survivor’s pension and was responsible for the relevant benefits in kind and cash benefits.

3. Article 1(b) refers to domestic social-security law when identifying activity as a self-employed person. Under Social Security Contributions and Benefits Act 1992, even limited actual work may suffice. But HMRC registration and Class 2 contributions alone do not establish self-employment. Where there are intervals between engagements, continuing self-employed status depends on the facts and the legal context.

4. A person compelled by sickness to stop self-employment must continue to be treated as pursuing it for article 11(3)(a), insofar as necessary to claim benefit for the sickness period. The relevant illness in a carer’s allowance claim is that of the person cared for. The cessation of work must have been required by that illness and the consequent need to provide care.

5. The claimant’s unequivocal statement that she had stopped work and ceased trading on 1 August 2013 was effective on these facts. Her granddaughter’s condition may have prompted that decision, but did not require her to cease two hours’ Saturday cleaning work or to stop seeking similar work. She was therefore not pursuing self-employed activity from 2 August 2013, and Poland was the competent state.

• Upper Tribunal (Administrative Appeals Chamber): the claimant’s appeal was dismissed in [2018] UKUT 329 (AAC).
• First-tier Tribunal: on 15 September 2014, it dismissed the claimant’s appeal against the Secretary of State’s decision of 7 October 2013 refusing carer’s allowance.