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Different benefits treatment for persons who are self-employed prior to unemployment is lawful under EU Directive 2004/38


R(Tilianu) v Social Fund Inspector and Another

The High Court dismissed T's application for judicial review of decisions of the Social Fund Inspector.  The Claimant contended that Council Directive 2004/38 did not distinguish between entitlement to social security benefits of persons who were either employed or self-employed prior to becoming unemployed. The High Court rejected this argument holding that pre-Directive EU law had always maintained a distinction between the rights of workers and persons who were self-employed. Recital 4 of the Directive demonstrated anj intention on the part of the EU legislature to have a single legislative act to bring together what had previously been dealt with piecemeal. The distinction between self-employed and employed persons for benefit purposes was reinforced by the language of Article 7(3) of the Directive.

The Court also accepted that the Social Fund Inspector, though in no sense bound by decisions of the Secretary of State in his overlapping jurisdiction, was entitled to place considerable weight on such decision and could not be faulted in the instant case from doing so.

Richard Gordon QC appeared for the Social Fund Inspector.