CPAG search

Decision in brief

Referral to Court of Justice of European Union as to whether UK derogation from Article 7(3) of EC Regulation 2008/38/EC was lawful

Summary

In this case, the European Court of Justice (ECJ) considered the right to reside of dependent 'family members' of Union citizens, and in particular considered the question of whether a claimant could be a 'dependant' of a Union citizen where s/he had not tried to seek employment or support in her/his country of origin, and whether the fact that s/he was well placed to obtain employment in the host EU state meant s/he could not be a dependant.

The claimant was a Philippines citizen. She had grown up in the Philippines in the care of her grandmother, her mother having moved to Germany to work. Her mother obtained German citizenship, and eventually moved to Sweden to live there with a Norwegian man whom she married. The claimant's mother and her step-father had both remained in contact with her, and regularly sent money to her in the Philippines to support her. The claimant never worked or received social assistance in the Philippines, where she eventually qualified as a nursing assistant. The claimant came to Sweden and applied for the right to reside (via an application for a residence permit) - on the basis that she was a family member of her mother and step-father, on whom she was dependent. That was refused by the Swedish authorities on the basis that she could have supported herself in her country of origin (ie, the Philippines).

The ECJ considered whether the claimant had a right to reside under Article 2(2)(c) of EC Directive 2004/38/EC - ie, the provision including within the definition of 'family member' those who are 'the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b)'. Specifically, the Court was asked to consider if a member state could require a direct descendant who is 21 years or older to have tried to obtain employment or help with supporting her/himself from the authorities of her/his country of origin or otherwise support her/himself. It was also asked if in interpreting 'dependant', could the fact that the claimant was well placed to obtain employment and intended to work in the member state could mean that s/he would no longer be regarded as a dependant?

The Court answered both questions in the negative. The fact that, in circumstances such as those in this case, a Union citizen regularly and for a significant period sent money to the claimant to support herself in the state of origin, showed a real dependence, and in those circumstances the claimant could not be required to show that she had tried to obtain employment or subsistence support from the authorities in the state of origin (paragraphs 24 and 25). On the second question, the fact that a relative was deemed to be well placed to obtain employment and start work in the member state did not affect the interpretation of the requirement that she is a 'dependant' (paragraphs 29-33).

Comment from CPAG

The Court assumed throughout that in Article 2(2)(c) the dependence of the claimant on the Union citizen 'must exist in the State of origin', that is 'the country from which the family member concerned comes' (paragraphs 22 and 30). Very arguably that is wrong, as the Article makes no such requirement. Indeed, in Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358 (14 December 2009), the Court of Appeal held, regarding the very similarly worded Article 2(2)(d), that Article 2(2) does not 'require that the relative must be dependent in the country of origin... taking Article (2)(2)(d) together with Article 8(5)(d) suggests that dependency in the state of origin need not be proved for family members' (paragraph 67). See the article in Bulletin 214, p4, for more on this reasoning in Pedro, which very arguably remains good law.

Decision in brief

RC v SSWP (PIP) [2017] UKUT 352 (AAC) (a brief conversation with a stranger about the weather does not involve establishing a relationship) remains good law – not undermined by Hickey v SSWP [2018] EWCA Civ 851 (ie, Hickey does not provide otherwise)

Decision in brief

Claimant with chronic fatigue syndrome – need to rest before starting an activity is not a relevant part of the test, which is about the claimant’s ability to carry out the activity and so is about performance not anything wider – however, need to rest between activities, including need to rest before an activity is repeated, in order to be able to carry out activity ‘repeatedly’ is part of the test (in regulation 4(2A)(c) of the Social Security (Personal Independence Payment) Regulations 2013) and can be taken into account

Decision in brief

The withdrawals were not ‘steady’ or ‘uniform’, were not repeated at fixed times or at uniform intervals and were not in respect of a period of time – although under regulation 46(3) of the Universal Credit Regulations 2013 sums (including, for example, annuities) are to be treated as income if ‘paid regularly and by reference to a period’, the withdrawals in this case did not meet that definition

Decision in brief

Claimant with back and leg pain – ability to move around or carry items in a kitchen is not relevant – ‘preparing’ and ‘cooking’ a meal not connected in the test and ‘making food ready for cooking’ does not include carrying food to where it is to be cooked

Decision in brief

Receipt of official medical report was itself a ground for supersession under regulation 26(1)(a) of the Universal Credit (etc.) (Decisions and Appeals) Regulations 2013 – but tribunal’s confirmation of removal of mobility award was entirely based on its finding that the claimant could drive an automatic car and had used an airport – tribunal failed to investigate the evidence and/or make adequate finding of fact and/or provide adequate reasons for its decision

Decision in brief

Wise to consider the risks and carefully explain its decision in that regard – MM v SSWP (ESA) [2018] UKUT 446 (AAC) approved – such inferences may legitimately be made, but doing so is risky and the tribunal’s reasons do not suggest it was alive to the potential difficulties

Decision in brief

Tribunal erred in failing to consider whether the claimant’s need to use ear plugs to reduce noise when cooking, washing and bathing constituted an ‘aid’ – also erred in not awarding points for problems with engaging with others face to face and planning and following journeys on the basis that he had no diagnosed mental health condition without explaining why it did not accept that autism and schizotypal personality disorder resulted in those problems

Decision in brief

Claimant’s ability must be assessed at a time of day when it is reasonable for them to carry out an activity – TR v SSWP [2016] AACR 23 and AE v SSWP [2024] UKUT 381 (AAC) applied

Summary

The claimant suffered from a serious mental health condition. She was in receipt of benefits including HB. In early November 2022 she moved out of her home and into another property, in the same local authority, in early December 2022. She did not inform the local authority of either move. When the local authority found out, it suspended HB on 11 January 2023 and on 17 January wrote requiring her to provide information within a month (but without referring to the possibility of an extension). A reminder was sent, but the claimant did not reply. A month later, on 21 February 2023, the council wrote saying the HB had been stopped and notifying a recoverable overpayment. On appeal, it was argued for the claimant that the decision to stop the HB should be replaced by a closed-period supersession stopping the HB only for the period when the claimant was between the two tenancies. The First-tier Tribunal dismissed the appeal.

Judge Paines KC allowed the claimant’s further appeal, substituting a decision that the claimant’s entitlement to HB was superseded regarding the period 14 November 2022 to 5 December 2022, with the payments in that period only a recoverable overpayment. The tribunal had erred in not holding that the correct application of the law was that at the time of the decision of 21 February 2023 the decision required was a closed period supersession – ie, on the basis that (a) at that time the claimant still had an award that still in existence, (b) that the award required to be altered retrospectively by supersession but (c) by the time of the decision the claimant once again satisfied the conditions for entitlement to HB. The judge was ‘fortified’ in that conclusion by the decision of Judge Butler, considering close period supersessions, in SSWP v SC and MJ v LB Bromley [2025] UKUT 299 (AAC) (paragraphs 25–26). (The rules on migration of HB to universal credit (UC) did not arise on the facts of the present case, as the claimant had not claimed UC, and the award of HB had remained in existence rather than having terminated.)

The judge considered whether the claimant’s entitlement instead required to be terminated (ie, with no closed period supersession then possible) for failure to provide information, under regulation 14 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, SI No.1002. It did not. Regulation 14 could come into play where a person has had their HB suspended under regulation 11, including at subparagraph (2)(a) because of a doubt about their entitlement and who subsequently fails to comply with an information requirement, or where their entitlement has been suspended under regulation 13 for failure to comply with an information requirement. The claimant clearly was a person referred to in regulation 13(2) – ie, a person whose benefit had first been suspended under regulation 11(2)(a). But regulation 13 requires a person subject to the information requirement to be informed of the possibility of explaining that the information does not exist or is unobtainable and of the possibility of an extension to the basic one month allowed for providing it – and in this case the local authority’s letter of 27 January did neither. It was well established that failure to give adequate notice under regulation 13 invalidated any subsequent termination under regulation 14. Therefore, there had been no valid termination of entitlement, the claimant’s award of HB remained current, and a closed-period supersession was the correct decision.

Summary

SC was entitled to UC. She notified her work coach that she would be going to Canada for just under seven weeks. The DWP superseded her award on the day after she left and removed entitlement, on the basis that her absence was planned to exceed one month. The First-tier Tribunal allowed her appeal on the basis that her UC should have been suspended until she had returned. MJ was entitled to housing benefit (HB). She notified the local authority of her intention to go to Brazil for just under five weeks. The local authority ended entitlement from the date of her departure. The First-tier Tribunal refused her appeal.

In the Upper Tribunal, Judge Butler allowed the Secretary of State’s further appeal in SC and dismissed the claimant’s further appeal in MJ. Both cases involved arguments for the claimants that in their cases a ‘closed-period’ supersession could have been carried out in advance – ie, a supersession to the effect that entitlement was only lost for the ‘closed period’ while abroad but was reinstated (ie, without the need for a new claim) prospectively, from the date of return. Judge Butler rejected that argument. A closed period supersession cannot be made on the grounds of a relevant change of circumstances to preserve an existing award of UC or HB where, at the date of the supersession, the claimant does not meet a condition of entitlement – eg, being in Great Britain. Neither, in these circumstances, was such a supersession possible on the ground of an anticipated change of circumstances.

The judge recognised that ‘closed period’ supersessions had been confirmed by a number of decisions initially by the Social Security and Child Support Commissioners and later by the Upper Tribunal. That authority was not disputed. But (unlike in the present cases) it concerned changes of circumstance that, at the point of the supersession, were retrospective, not prospective. The caselaw, said the judge, 

‘has confirmed it is possible to have a closed period supersession where the fixed period occurred in the past and, at the time that the SSWP makes the supersession decision changing a person’s entitlement, the person meets all the entitlement conditions for the benefit’ (paragraph 44). In the present cases, by contrast, the claimants were arguing for a ‘prospective closed period supersession’. 

The judge considered that in a retrospective closed period supersession, where past periods of non-entitlement were followed by period where the entitlement conditions were met again, the overall benefit award ‘will remain a running decision’ (paragraph 192). But if, as in the present cases, the supersession operates to disallow an existing award, the result is that there is not a ‘running decision’, which ‘explains why the supersession decision cannot be superseded for a later change of circumstances. The later change of circumstances is not relevant to the supersession decision, because that decision ceased to have effect after it changed and ended the benefit award’ (paragraph 194). So, in the present cases, the ‘outcome decision’ from the change of circumstances was simply that the claimant was no longer entitled to the benefit: ‘Once that supersession decision was made, it ended the benefit award. At this point, SC and MJ needed to make a new claim to benefit to be entitled to it once more’ (paragraph 229).

Comment from CPAG

The judge responded to observations that the outcome seemed to favour claimants who delayed reporting such changes until they satisfied the entitlement conditions again by pointing out that such claimants may have incurred overpayments and be liable to civil penalties for failure to disclose or to prosecution for fraud.