Bristol City Council v FV (HB)

Factual and Procedural Background

This opinion concerns an appeal by a local authority against a decision of the First-tier Tribunal which allowed a claimant's appeal against the refusal of housing benefit and council tax benefit. The local authority had denied benefits on the basis that the claimant lacked a right to reside in the United Kingdom or associated territories and therefore was not habitually resident. The First-tier Tribunal found that the claimant had an extended right of residence as a self-employed person under the Immigration (European Economic Area) Regulations 2006, specifically as a seller of the Big Issue magazine. The Tribunal concluded that the claimant's activities amounted to genuine and effective self-employment, granting her entitlement to benefits. The local authority appealed to the Upper Tribunal, challenging the factual findings and the weight given to evidence, including sales figures provided by the claimant. The Upper Tribunal Judge Rowland heard the appeal without an oral hearing and dismissed the local authority's appeal.

Legal Issues Presented

1. Whether a person undertaking the activity of selling the Big Issue can be regarded as self-employed for the purposes of the right to reside test under the Immigration (European Economic Area) Regulations 2006.
2. Whether the claimant's self-employment was genuine and effective, satisfying the requirements of EU law and domestic regulations.
3. Whether the First-tier Tribunal erred in law by relying on certain evidence, including sales figures, and by making findings of fact challenged by the local authority.

Arguments of the Parties

Local Authority's Arguments

• The First-tier Tribunal made an error of law by making a factual finding that the claimant was selling copies of the Big Issue.
• The Tribunal improperly placed significant weight on a particular sales evidence document, questioning its authenticity and accuracy.
• The sales figures assumed all copies were sold, but the claimant admitted discarding unsold copies, undermining the genuineness of the self-employment.
• There were inconsistencies between two sets of sales figures provided by the claimant, with an inadequate explanation for the differences.
• Suspicions were raised about the format and provenance of the sales evidence document, suggesting it may not be genuine or reliable.

Claimant's Arguments

• The claimant was genuinely self-employed as a seller of the Big Issue, working regularly and generating profit.
• The claimant’s intention to claim benefits did not negate the genuineness or effectiveness of her self-employment.
• The sales figures, though not perfectly precise, were sufficient to demonstrate genuine economic activity.
• Any discrepancies in sales figures were likely due to errors by the Big Issue office rather than dishonesty on the claimant's part.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jany v Staatssecretaris van Justitie (Case C-268/99) [2001] ECR I-8615	Definition of genuine and effective work for self-employment under EU law.	The Tribunal applied the test of genuineness and effectiveness of self-employment as established by the ECJ in Jany, confirming that the claimant’s activities met this standard.
TG v Secretary of State for Work and Pensions [2009] UKUT 258 (AAC)	Assessment of self-employment status based on hours worked and economic activity.	Used as an illustrative case to support finding that low hours and modest earnings could still constitute genuine self-employment.
R(IS) 12/98	Recognition of worker status in cases of low-wage, part-time work.	Referenced as an example where limited hours and low remuneration still qualified for worker status, supporting claimant’s position.

Court's Reasoning and Analysis

The Upper Tribunal Judge carefully reviewed the First-tier Tribunal's findings and the evidence presented. The Judge acknowledged that the assessment of whether work is genuine and effective is a question of fact and that decided cases serve as guidance but are not binding. The Tribunal's conclusion that the claimant was genuinely self-employed was supported by evidence of regular working hours (16 to 24 per week), consistent purchase and attempted sale of magazines, and profit figures averaging between £45 and £150 weekly.

The claimant’s admission that she came to the UK to claim benefits was considered but held not to undermine the genuine nature of her self-employment. The Tribunal did not err in law by disregarding this intention as an independent ground to deny self-employment status once the economic activity was found genuine and effective.

The local authority’s objections regarding the authenticity and accuracy of the sales figures document were rejected. The Tribunal had inquired about unsold copies and was aware that profits were projections assuming full sales; this did not vitiate the evidence. Doubts about the document’s format and provenance were not substantiated with clear evidence of fraud, and the Tribunal was entitled to rely on the document as genuine. Discrepancies between two sets of figures were plausibly explained as errors by the Big Issue office rather than dishonesty by the claimant.

Ultimately, the Judge found no error of law in the First-tier Tribunal’s decision and affirmed its factual findings as rational and lawful.

Holding and Implications

The Upper Tribunal DISMISSED the local authority's appeal, thereby upholding the First-tier Tribunal’s decision that the claimant was entitled to housing benefit and council tax benefit based on her right to reside as a genuinely self-employed person.

The direct effect of this decision is that the claimant’s entitlement to benefits stands. No new legal precedent was established, and the decision reaffirms established principles regarding the assessment of self-employment status and the application of EU law tests for genuine and effective economic activity in benefit entitlement cases.