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Summary

The claimant was a Spanish national. She formed a relationship with a British national (they remained unmarried) and moved to the UK with him. They had two children together. Following the break-up of the relationship, the family court refused the claimant permission to take the children to live in Spain. Her claim for IS as a lone parent was refused as she did not have a right to reside. The First-tier Tribunal upheld that decision, holding that the right to freedom of movement in the EU could not confer rights that went beyond the ‘residence’ Directive, 2004/38/EC, unless it could be shown that there was a lacuna in the Directive, and that there was no such lacuna in this case.

Judge Ward refused the claimant’s further appeal, holding that the tribunal had not erred in law. He agreed with what the tribunal had said about the need in a case like this (ie, where there was no entitlement under the rules) to identify a lacuna in the Directive, and said that in the absence of any restriction on the children’s rights as EU citizens, there was no basis of a right to reside for IS purposes (paragraphs 70 and 99). There was no question that the claimant had any right to reside as set out in the domestic rules or the Directive. The claimant was therefore ‘dependant on a proportionality argument’ – ie, that the limitations created by the Directive did not deprive her of a right she had under the Treaty on the Functioning of the European Union (paragraph 40).

The judge reviewed the position on proportionality in the light of decisions subsequent to that of the Supreme Court in Mirga v Secretary of State for Work and Pensions [2016] UKSC 1. That had referred to the possibility of ‘exceptional cases where proportionality could come into play’. He held that it was still possible, even after Mirga, to rely on proportionality by identifying a ‘lacuna’ in the Directive (paragraph 49), and that although such a case had to be ‘exceptional’, that did not confine the exceptionality to a ‘near miss’ of having a right to reside (paragraph 50). But proportionality had to be considered ‘with a full awareness of the importance of the Directive to the budgets of Member States’ (paragraph 53). It could not (in the judge’s view) be said that a court order such as the one in the present case was not considered in the legislature: Article 13 of the Directive restricted the rights of ex-partners to those following divorce or termination of a registered partnership, and not to the children of unmarried partners in unregistered partnerships (paragraph 61). Finally, the judge could see no reason to conclude that it was the children’s rights under European law that were being impeded by the family court, and so there was no form of derivative right through them (paragraphs 72–90).

Comment from CPAG

The judge’s findings confirm that so-called ‘lacuna-filling’ in interpreting the Directive can still found arguments about proportionality. But it remains difficult to be clear about exactly what cases may be sufficiently exceptional to qualify.

Summary

The claimant occupied a three-bedroom house with her husband and two sons. The ‘bedroom tax’ was applied on the basis that the sons could share a bedroom. However, the First-tier Tribunal accepted that the sons could not share either of the two smaller bedrooms due to the unsuitability of a bunk bed for either of those rooms. The Secretary of State appealed, arguing that all that was required was that a bedroom be capable of accommodating a category of occupant, even though on the facts it was not suitable for the particular category (eg, in this case two boys) who would actually occupy it.

A three-judge panel of the Upper Tribunal (Mrs Justice Knowles, Judges Jacobs and Hemingway) rejected the Secretary of State’s appeal. In effect, the room in question must be capable of occupation by the actual category of occupant in the home. Firstly, the relevant rule (at regulation B13(5) of the Housing Benefit Regulations 2006, SI No.213), is that a bedroom be provided ‘for’ each category of occupant, and ‘the natural expectation of that language is that the room would be a bedroom for the persons bearing the characteristics of that category, not a room that ignored those characteristics’. Secondly, if the legislation were to produce the result contended for by the Secretary of State (ie, that characteristics of the categories of the actual occupants were to be ignored), it would need much clearer language (paragraph 12).

To the extent that they suggested otherwise (by reference to use by ‘any’ category), the decision of the Scottish Court of Session in Secretary of State for Work and Pensions v Glasgow City Council and IB [2017] CSIH 35 and the Upper Tribunal in SSWP v Nelson and Fife Council [2014] UKUT 525 (AAC), reported as [2015] AACR 21, were not followed. Among other things, these decisions were not primarily concerned with the ‘connection’ issue of the relevance of the characteristics of the categories of occupants, but rather with the way in which the property was classified by the landlord and used by the claimant (paragraphs 23–24 and 28).

Summary

The claimant was an Italian national, in receipt of a French state pension, who had come to live in the UK. His claim for carer’s allowance was refused on the basis that (due to the French pension) the UK was not the competent state. The claimant told the First-tier Tribunal that the French authorities told him that they would not pay French carer’s allowance regarding a disabled person in the UK. In the following Upper Tribunal, the DWP said that the French authorities refused to pay as the claimant did not live in France, but that the Secretary of State proposed to contact them to reach agreement. Judge Jacobs held that the Secretary of State must in the meantime make a provisional award of carer’s allowance, under Article 6(2) of EC Regulation 987/2009. The Secretary of State appealed, arguing that the ‘difference of view’ about competence referred to in the Article only arose in the event of a formal decision from the other member state that it did not consider itself competent.

The Court of Appeal unanimously rejected the Secretary of State’s appeal, and upheld Judge Jacobs’ approach. It was correct that the ‘difference in views’ had to be about competence not eligibility (paragraph 37). But the approach of the Secretary of State, if correct, would require the claimant to take steps to pursue both of the relevant member states for a formal decision and to suffer a likely considerable delay. Rather, the legislation presupposes the protection of the individual by payment of provisional benefit while issues of competence are resolved by the member states (paragraph 44).

Whether there was a difference of view was an evidential question for the case concerned. In the present case, the evidence was that the French authorities had refused to pay because the claimant does not live in France, and Judge Jacobs had been entitled, as a judge in a specialist chamber of the Upper Tribunal, to conclude that Article 6(2) applied (paragraphs 46–48).

Summary

The claimant was a ‘Zambrano carer’ – ie, a non-European national with care of a European national child (in this case, British children). It was common ground that the claimant had a right to reside as a Zambrano carer. It was also not in dispute that she was entitled to and was receiving support under section 17 of the Children Act 1989. However, under amendments introduced in November 2012, she was not also entitled to income-related benefits, child benefit, child tax credit and housing and homelessness assistance. Following an unsuccessful challenge to the legality of those amendments in the Court of Appeal, a further appeal was considered by the Supreme Court.

The Supreme Court held that amendments barring Zambrano carers from benefits and housing assistance were not unlawful. The court rejected the claimant’s arguments that the November 2012 amendments unlawfully discriminated against her. Giving the lead decision, Lord Carnwath noted that in the Zambrano case itself (Ruiz Zambrano v Office national de l’emploi, Case C-34/09 [2012] QB 265) there was no finding as to the nature of financial support required to Zambrano carers or of the extent of any right to benefits (paragraph 9). Once it was determined that European Union (EU) law did not require more for the children of a Zambrano carer than the practical support required to avoid their being obliged to leave the territory of the EU, any further support (eg, via benefits) was the exercise of choice under national law, not EU law (paragraph 28). Any discrimination was, held the judge, justified as not being (as per the relevant test) ‘manifestly without reasonable foundation’. Aims such as ‘reducing costs by allocating benefits to those with the greatest connection to this country’ were cited (paragraph 32).

That left the claimant and her children reliant on the section 17 support provided by the council. The judge agreed with the comments about section 17 made by Lady Hale (who was unimpressed by the justification argument, which to her seemed to relate to adults but not to children). Lady Hale said there were disadvantages with section 17 assistance in that it was discretionary and there was only a judicial review right of challenge, there were no standard rates for cash assistance and there was not an automatic right to passported benefit such as free school meals. Lady Hale said the council in reviewing the claimant’s section 17 entitlement would ‘no doubt’ take into account the fact that the children in this case were British and of the impact upon them of being denied a level of support equivalent to other British children (paragraphs 43–46).

Summary

This judicial review decision of the High Court holds that changes made to the PIP mobility descriptors made to exclude ‘psychological distress’ as a reason for inability to plan or follow the route of a journey, effective from 16 March 2017, are unlawful. Mr Justice Mostyn held that the changes to the Social Security (Personal Independence Payment) Regulations 2013, SI No.377 (the ‘2013 regulations’), specifically regarding PIP descriptors 1(c), (d) and (f), made by the Social Security (Personal Independence Payment) (Amendment) Regulations 2017, SI No.194 (‘the amending regulations’) constituted unlawful discrimination, and quashed the relevant part of the amending regulations (paragraph 64).

The judge noted that at no previous point, including in consultation about the 2013 regulations, had it been made clear that the government took the view that those with mobility problems caused by psychological distress had a lesser need than those with identical problems caused by some other reason (paragraphs 7–30). What the government now contended was the original legislative intent could not be deduced from the rules extant before the change, either on a literal or purposive construction (paragraphs 30–32). Further, that original policy intention was not based on empirical research or evidence, and was untenable (paragraphs 44–47).

The judge considered that the exclusion of psychological distress from the descriptors was ‘blatantly discriminatory against those with mental health impairments and cannot be justified’ (paragraph 59). The changes were in breach of Article 14 (read with Article 1 of Protocol 1 and Article 8) of the European Convention on Human Rights. The objective of the changes was ‘plainly’ to save money, and that was manifestly not sufficiently important to justify the discrimination. Further, the absence of empirical evidence meant that the changes were not rationally connected to the objective (paragraphs 44–48). Overall, the discrimination was ‘manifestly without reasonable foundation’ and therefore could not be justified (paragraph 59). Given all this, the judge also accepted that the changes were unlawful on the grounds of inadequate consultation, and ultra vires of the primary powers regarding PIP in the Welfare Reform Act 2012 (paragraphs 62–63).

Comment from CPAG

The Secretary of State abandoned an initial application for leave to appeal and has announced that the government will not challenge this decision.

Summary

This decision of the Court of Justice of the European Union concerns the right to reside of an Algerian national married to someone with dual British/Spanish nationality. The appellant’s wife was Spanish. She moved to the UK to study, then worked full time. She became a British citizen while retaining her Spanish nationality. She met and later married the appellant. His application for a residence card was refused on the basis that he did not have rights as the family member of a European Economic Area (EEA) national, because when his wife acquired British nationality, she could no longer count as an ‘EEA national’ under the so-called ‘residence’ Directive, 2004/38/EC.

The court confirmed that where a citizen of the European Union (EU) has exercised her/his freedom of movement by moving to another member state, has then acquired the nationality of that member state while retaining her/his nationality of origin, and has later married a ‘third-country’ national, that third-country national does not have the right to reside as a family member of that person on the basis of Directive 2004/38/EC. However, that third-country national was nevertheless entitled to the right to reside as a family member of the EU citizen. This was on the basis of rights under Article 21(1) of the Treaty on the Functioning of the European Union (TFEU). That right to reside must not be more restricted than the family member rights for a third-country national that Directive 2004/38/EC does provide for.

Summary

The First-tier Tribunal held that the claimant’s ability to mobilise could, for the purpose of the mobilising descriptors in the work capability assessment, be assessed taking into account his ability to use a powered wheelchair. The tribunal considered that although the wording of the mobilising activity itself referred only to a ‘walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably be used’, a powered wheelchair could be considered as an ‘other aid’.

Judge Mitchell allowed the claimant’s further appeal. The tribunal had erred in holding that use of a powered wheelchair could be taken into account (paragraph 2). A manual wheelchair and a walking stick share a ‘common characteristic’: that is that ‘they both require an individual to supply all of the energy necessary to move without relying on any external source of power’. That was enough, held the judge, to establish a category (‘genus’) which, under the principle of ejusdem generis, meant that the other aids that could permissibly be taken into account should be of the same nature (paragraph 20).

Further, the judge did not agree with the tribunal’s suggestion that requiring any ‘other aid’ to be similar to a manual wheelchair or walking stick would make the mobility test impossible to apply. ‘If the mobility provisions are properly construed’, said the judge, ‘the range of “other aids” is limited to those whose use still requires the individual to move under his or her own steam (and which are normally used or could reasonably be used). I think it is quite straightforward to decide which aids qualify under that test and which do not’ (paragraph 23).

Summary

This decision deals with two cases that concerned the presence tests for, respectively, DLA and attendance allowance (AA), and the application of EC Regulation 883/2004. In BK, the claimant was Irish. He lived in Ireland from his birth in 2000 until moving to the UK with his mother in 2013. He was refused DLA on the basis that he had not been present in the UK for at least 104 weeks out of the previous 156, and did not have a ‘genuine and sufficient link’ to the UK. In MM, the claimant was German and came to the UK in 2013, having lived in Germany since 1998. She was refused AA for same reasons

In both cases, the First-tier Tribunal considered arguments that the claimant’s past presence in the relevant EU country fell to be aggregated with their presence in the UK, under Article 6 of EC Regulation 883/2004. In BK, the tribunal refused to accept that argument, in MM the tribunal accepted it and allowed the claimant’s appeal.

Judge Jacobs held that the tribunal in BK did not err in law, but the tribunal in MM did. Article 6 did not allow aggregation of presence on the basis of ‘mere residence’ (paragraph 18). In the decision in Stewart v Secretary of State for Work and Pensions (C-503/09), the Court of Justice of the European Union had laid down a general principle that a member state may insist on a claimant demonstrating a genuine and sufficient link with that state as a condition of benefit entitlement. To allow mere residence in another state to be aggregated could render the Court’s decision nugatory and bypass the law that Stewart applied (paragraphs 18–19). The only aggregation that was possible under Article 6 regarded residence which equated to insurance in a member state (paragraphs 20– 24). However, the Court in Stewart established a test of a genuine and sufficient link to the member state, not to the state’s social security system. Therefore, the requirement in the domestic legislation to show a link to the UK social security system is unlawful and it is possible that presence alone may demonstrate a genuine and sufficient link (paragraphs 28–32).

Judge Jacobs held that the tribunal in BK did not err in law, but the tribunal in MM did. Article 6 did not allow aggregation of presence on the basis of ‘mere residence’ (paragraph 18). In the decision in Stewart v Secretary of State for Work and Pensions (C-503/09), the Court of Justice of the European Union had laid down a general principle that a member state may insist on a claimant demonstrating a genuine and sufficient link with that state as a condition of benefit entitlement. To allow mere residence in another state to be aggregated could render the Court’s decision nugatory and bypass the law that Stewart applied (paragraphs 18–19). The only aggregation that was possible under Article 6 regarded residence which equated to insurance in a member state (paragraphs 20– 24). However, the Court in Stewart established a test of a genuine and sufficient link to the member state, not to the state’s social security system. Therefore, the requirement in the domestic legislation to show a link to the UK social security system is unlawful and it is possible that presence alone may demonstrate a genuine and sufficient link (paragraphs 28–32).

Note: The claimants are seeking leave for appeal.

Summary

The parents of the child were separated. The father had been the claimant (and recipient) since 2011. The mother made a competing claim, on the basis that the child had gone to live with her then boyfriend and his family in July 2013, did not return to live with the father until April 2014, and in that period she (ie, the mother) was supporting the child financially. HMRC refused the claim, firstly on the basis that the father had already been paid up to December 2013 and so she could not be entitled until then, that the priority rules prevented entitlement for three weeks from then, and that in fact the child was living with his father again from January 2014. The First-tier Tribunal refused the claimant’s appeal, on the basis that the father had already been paid child benefit to December 2013, and that, in any case, the child had never actually lived with her.

Judge Wikeley allowed the claimant’s appeal and remitted to case to a fresh tribunal for findings of fact about exactly where the child lived and when. The tribunal had erred in two respects. Firstly, the tribunal had regarded the rule about non-entitlement for a period in which someone else had already been paid child benefit, at section 13(2) of the Social Security Administration Act 1992, as an absolute rule. In fact, that rule was subject to exemptions set out in regulations, namely regulation 38 of the Child Benefit (General) Regulations 2006, SI 2006 No.223. That provides exceptions in the situations where it has been finally determined that the child benefit was overpaid and (in effect) is recoverable; or where where the child benefit has been voluntarily repaid, or recovered from the other person. The tribunal’s treatment of section 13(2) as an absolute rule was therefore an error of law (paragraphs 19–21).

Secondly, the tribunal had wrongly assumed that entitlement to child benefit is exclusively a matter of residency. In fact, as provided for by section 141 of the Social Security Contributions and Benefits Act 1992, entitlement is based on ‘responsibility’ for a child. That is defined in section 143(1) as the child living with the claimant or where the claimant is contributing to the cost of providing for the child at at least the rate of child benefit. In fact, the claimant’s case had always been that entitlement was based on the latter route, but the tribunal had never properly addressed that argument (paragraphs 22-28).

Decision in brief

It is permissible to consider activity carried out since the date of the decision, if they throw light on what the position was at the time - applying substantial risk rule may include consideration of third-party assistance - but regular and open-ended help should not be assumed - an open-ended commitment (from a third party) to travel to and from work-related activities is 'unreasonable and unworkable'

Comment from CPAG

Regarding third-party assistance, this decision does not refer to KN v SSWP (ESA) [2016] UKUT 521 (AAC) but, in the emphasis both decisions put on the reasonableness and practicality of any such help needing to be considered, is not inconsistent with it.

Decision in brief

Communicating verbally- claimant with hearing loss able to lip read but not sign and needing informal help from family and friends - meaning of 'communication support' - can be provided not only be those trained or experienced in communicating with people with specific information needs generally, but also by family and friends who are directly experienced in communicating with the claimant alone - parity of reasoning with similar findings regarding 'social support' for Activity 9 in SL v SSWP (PIP) [2016] UKUT 147 (AAC)

Decision in brief

Managing therapy or monitoring a health condition - use of a nebuliser and application of Activity 3(b)(i) re need to 'use an aid or appliance to be able to manage medication or monitor a health condition' - medication delivered by the nebuliser cannot be an aid or appliance - an aid must help to overcome the consequences of a function being impaired that is involved in carrying out an activity- in 3(b) the activity is managing medication, not breathing - use of a nebuliser in itself does not indicate any limitation on the claimant's ability to manage medication (and so is not an 'aid')- if a nebuliser was needed because it was more effective than an inhaler, it may be an aid to manage medication, but that did not apply on the facts of this case where the claimant was able to use an inhaler